Legal Argument Forms & Examples – Video Notes

Overview of Argument Categories

• Four primary common-law argument types highlighted:

  • Arguments from precedent.

  • Arguments from public policy.

  • Arguments from rights / morality.

  • Arguments from administrability (a.k.a. institutional competence).

• Two additional, frequently encountered patterns briefly noted: slippery-slope arguments (two sub-types).

• Speaker stresses that categories routinely overlap; effective advocacy often weaves several strands together.

Arguments from Precedent

• Core idea: look to earlier, factually similar cases to justify the same (or distinguish a different) outcome.

• When a relevant precedent exists, lawyers frame the current dispute as “already decided.”

• Absence of precedent triggers the other three categories more heavily.

• Example implicitly referenced: if California already recognized stalking as a tort, plaintiff’s lawyer would rely on those cases—no need for moral or policy appeals.

Arguments from Public Policy

• Purpose: persuade the court by forecasting societal consequences of adopting or rejecting a rule.

• Assess costs/benefits, deterrence, efficiency, fairness, administrative burden.

• Speaker previously demonstrated with other examples (not repeated here) but notes they are common in philosophy, politics, everyday debate, and legal settings alike.

Arguments from Rights / Morality

• Used when neither precedent nor clear policy guidance exists.

• Invoke widely shared moral intuitions or basic human rights to urge recognition of a new legal duty.

• Hypothetical stalking scenario:

  • FACT PATTERN: Jurisdiction has no statute or case law treating stalking as tortious.

  • LAWYER’S MOVE: Argue victims possess a moral right “to be left alone” and free from creepy conduct.

  • Court could elevate this moral right into a legally cognizable duty despite lack of precedent.

• Important caveat: not every moral wrong becomes a legal wrong; success is uncertain.

• Technique in practice:

  • Combine moral appeal with analogies to existing torts (e.g., invasion of privacy, assault).

  • Demonstrates to judge that requested extension sits comfortably within established doctrinal neighborhood, easing concerns about judicial overreach.

Arguments from Administrability / Institutional Competence

• Focus: “Who is the appropriate decision-maker?” rather than “What is the best rule?”

• Courts may refuse to create or extend doctrines if legislatures/agencies are better suited.

• Rationale considerations:

  • Democratic legitimacy & representativeness.

  • Fact-finding capacity, prospective rule-making ability.

  • Systemic impact on social practices.

• Drunk-driver host liability example:

  • VICTIM sues dinner-party host who supplied alcohol to drunk driver.

  • DEFENSE argument:

  • Imposing host liability would radically transform ordinary social gatherings (dinner, Super Bowl parties).

  • Deciding whether society should bear that transformation is a legislative—not judicial—task.

  • Court should thus abstain from recognizing such liability.

• Relationship to other categories:

  • Often intertwined with policy points (costs, societal disruption) but distinguished by its procedural focus on locus of authority.

Slippery-Slope Arguments (Supplementary)

• General theme: today’s ruling will precipitate a chain of future outcomes or decisions—undesirable or logically compelled.

• Two sub-types distinguished:

1. Consequential Slippery Slope

• Predicts factual, real-world reactions.

• Colorado skydiving-plane-crash case:

  • Plaintiff signed a liability waiver; question: should court enforce it?

  • ANTI-WAIVER argument: if court enforces here, other industries (ski resorts, bus companies, surgeons) will copy the waiver strategy.

  • End state: erosion or near-elimination of tort liability across society.

2. Principle-based (Line-drawing) Slippery Slope

• Emphasizes judicial rationality/consistency rather than external consequences.

• Same waiver scenario reframed:

  • If court upholds skydiving waiver, it must later confront medical-malpractice waivers.

  • Judge risks either accepting them (perhaps unpalatable) or articulating a principled distinction.

  • If no coherent distinction exists, initial decision undermines integrity of legal reasoning.

Interaction & Advocacy Strategy

• Skilled litigators rarely rely on a single type; they layer:

  • Moral rhetoric to evoke sympathy and justice.

  • Precedential analogies to show doctrinal continuity.

  • Policy data to illustrate real-world stakes.

  • Administrability caution to direct certain questions to legislatures when beneficial.

• Law-school pedagogy: teaches both the substantive outcome and the meta-question “WHO DECIDES?”—vital to mastering common-law reasoning.

Takeaways for Exam Preparation

• Memorize four core categories and recognize hallmark signals in case opinions/exam hypotheticals.

• Practice mapping any argument to at least one category; identify overlaps.

• For each category, know:

  1. Typical structure.

  2. Common strengths/criticisms.

  3. Canonical examples (stalking, host liability, waiver cases).

• During analysis:

  • Ask: Is there precedent? If yes, lead with it.

  • If no precedent, consider rights and policy.

  • Always evaluate institutional competence—should court or legislature act?

  • Be ready to rebut or deploy slippery-slope claims (consequence vs. principle).

• Remember: not every moral wrong = legal wrong; courts operate within institutional limits.