Announcements:

The Standard of Review assignment

If you find a new standard of review case include it on your
outline.

Your source list and an outline of the argument section

are due in class this Monday, Feb. 7. Point-headings will
not be graded.

Again, include no more than 25-30 cases plus statutes

on the source list. Divide the sources according to the
issues and include FULL case citations. Limit the outline
to no more than 3 pages double-spaced and the source
list to one page (single or double).

Review form for outline including roadmaps.

 Writing the Argument
Section of the Appellate Brief
Parts of a Syllogism
Major premise: Broad statement of
general applicability.

Minor premise: Narrower statement of

particular applicability.

Conclusion: Logical consequence of the

major and minor premises.
 Outlining the Argument Analytical
Categories
Thinking about how to support or
ground your premises will help
you to identify the courts
analytical categories or factors
important in making the legal
determination.

This should help you come up

with possible point and sub-point
headings for your brief.
Legal Arguments as Syllogisms

Major premise = statement of law.

Minor premise = application of law to

specific facts.

Conclusion = derives from premises.

Thus, to support your arguments, you
also need to ground your premises.

Grounding = providing enough

support for the premises to
convince your audience that the
premises are true.
 How do you ground
the Major Premise?
By citing to legal authorities

Demonstrate that mandatory authority

dictates a certain result; ground the major
premise in law. Cite either a . . .

Higher court.
Statute.
Constitution.
 How do you ground
the Minor Premise?

Because a minor premise of a legal syllogism applies

a legal principle to the facts of the case, the minor
premise always includes some sort of factual
assertion.

Ground the minor premise first with another

deductive argument and eventually on facts in
evidence (THE RECORD ON APPEAL).
 Relationship to analogies,
conductive or other arguments-

The other forms of argument help with legal

reasoning- with the grounding.

For example, analogies in the form

of comparisons with precedent
cases can support a premise,
but do not provide the answer
(the so what?)

Have you discovered any kind of conductive

arguments (factor analysis) might you use to support
your appellate brief argument regarding effective
accommodations?
Constructing Syllogisms

Gulf Sturgeon Example (handout)

 What is best conclusion for your client?

That the ESA

prohibits the pier
 Convert this to a Syllogism

1.

2.

3. Therefore, the ESA prohibits the

pier. (Conclusion)
 Construct the Major Premise
What Does the ESA Prohibit?

1. The ESA prohibits takings. (Rule)

2.

3. Therefore, the ESA prohibits the pier.

(Conclusion)
 Construct the Minor Premise

1. The ESA prohibits takings.

2. The pier would be a taking.

3. Therefore, the ESA prohibits the pier.

 Ground the Major Premise

1. The ESA prohibits takings: 16

U.S.C. 1538(a)(1).

2. The pier would be a taking.

3. Therefore, the ESA prohibits the pier.

You Can Also Ground a Minor Premise by
Converting to a New Syllogism

1. The ESA 1.
prohibits takings:
16 U.S.C. 1538(a) 2.
(1).
2. The pier would
be a taking.
3. Therefore, the
pier would be a
3. Therefore, the
taking.
ESA prohibits the
pier.
 Construct and Ground a Major
Premise for the of New Syllogism.
1. Taking means
harm to an
endangered species:
16 U.S.C. 1532(19).

2.

3. Therefore, the pier

would be a taking.
Construct the Minor Premise of
Your New Syllogism
1. Taking means
harm to an
endangered species:
16 U.S.C. 1532(19).
2. The pier would
harm the Gulf
Sturgeon, an
endangered species.
3. Therefore, the pier
would be a taking.
 Ground the Minor Premise by
Converting to a New
Syllogism
1. Taking means 1.
harm to an
endangered species: 2.
16 U.S.C. 1532(19).
2. The pier would
harm the Gulf
3. The pier would
Sturgeon, an harm the Gulf
endangered species. Sturgeon, an
endangered
3. Therefore, the pier species.
would be a taking.
 Construct and Ground
a Major Premise
1. Harm means habitat
modification effecting
breeding. 50 C.F.R.
17.3

3. The pier would harm

the Sturgeon, an
endangered species.
 Construct and Ground
a Minor Premise
1. Harm means habitat
modification effecting
breeding. 50 C.F.R.
17.3
2.The pier will modify
the habitat enough to
effect breeding.
3. The pier will harm
the Sturgeon, an
endangered species.
Draft your own argument.
Create a
syllogism for the
sample brief.

The for your

position as to the
issues in the
Appellate Brief.
 Use I.R.A.C., a form of
Deductive Logic in Your Brief .

The End.