In persuasive writing, there are two main legal issues. First are fact-based issues and the second are law-based issues. We have dealt with fact-based issues in the past. This is when a law has already been decided and we are attempting to apply the law to a particular set of facts. Law-based issues are when the law may be unclear and is yet to be decided to clarify the issue. As a result, these legal issues lead to arguments that can be made for each.
Fact-based Issues
For a fact-based issue, we have already discussed the main types of legal arguments. Rule-based reasoning (apply the law directly), analogical reasoning (compare facts with other cases), and policy considerations (how a ruling would impact future people).
In predictive writing, we used this information to predict a result. Now, we can use the same information but frame the arguments different to sound persuasive, instead of neutral.
Law-based issues
Law-based issues are when the law has not been decided yet. Your goal would be to convince a court to decide the law in a particular way (often these rules are made at the appellate level). The tools you have include text, intent, precedent, and policy consideration.
Text
There are three ways to develop textual arguments.
- Plain language
- Canon of construction
- And intratextual
The plain language means to look at the text directly to provide an interpretation. If the text is clear enough, that usually settles the debate and the law is settled.
There are several canons of construction. One canon may support an argument while another will support a different argument. A canon is a way of looking at how the text was written to infer the meaning of the text. An example of a canon is to look at the “ordinary meaning”.
Intratextual refers to using another part of the text to interpret the text in question.
Intent
Legislative intent is another way of discerning the law, especially if the text is not clear. Looking at the history, debates, etc. one can infer what the legislative body meant when the law was interpreted.
Precedent
For fact-based issues, precedent refers to the rule of law that already exists. When we consider it for law-based issues though, it refers to different decisions provided by a variety of courts on the subject. For instance, one circuit could have ruled one way on an issue, and another circuit rule a different way on the same issue. Although the rule is not settled, these cases can be used to develop logical reasoning.
Policy
All the above methods of developing arguments are through looking backwards in time. Policy considerations are look forward. We are trying to determine what the consequence would be (good or bad) for a particular ruling.
There are four methods of policy considerations for law-based issues:
- Normative arguments
- Economic arguments
- Institutional competency arguments
- Judicial administration arguments
Normative arguments refers to the idea that a society has shared values and that a ruling would result in furthering or diminishing from those values.
Economic arguments refer to the idea that a particular ruling would either help or hinder economic development.
Institutional competency arguments mean that you are questioning whether the judiciary has the authority to hear the case. In other words, you are asking if this case should be heard by another governing body.
Finally judicial administration arguments are made to persuade the court that a particular ruling will either help or hinder the judicial process. For example, an attorney may argue that a ruling will make the courts too busy to issue other good rulings.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
