IRAC. CREAC. TREAT. TRAC. C-RAC. BaRAC. CIRIP. QALEICPA.* Whichever poison you (or your professor) picks, you might have a few burning questions in the back of your mind: why use it? Don’t these acronyms reduce legal arguments to a mere formula? And isn’t formulaic writing bad?

Those were questions I had when I was first exposed to CREAC as a law student. I never really got the answers to them at the time, either. The reality of 1L year being what it is, I internalized the paradigm and went with it because that’s what my professor told me and my classmates to do. Despite what my English teachers once taught me—that formulaic writing is boring, confining, and lazy—I had to put those misgivings aside. Successful legal writing followed a formula, I was told. I wanted to be successful—so I followed the formula.

But as it turns out, not all writing formulas are equal. The alphabet soup of legal writing acronyms does not merely represent a formula for successful legal writing. They represent a formula for successful legal reasoning. And that formula, when stripped down to its core, is an extended logical argument. Which is, I’m happy to report, a much different type of formula than the ones my high school English teachers berated me for using, such as “each paragraph must have five sentences” and “each essay must be five paragraphs, three of which must be ‘body’ paragraphs.” (In fairness to me, those formulas are what my middle school English teachers told me to use.)

This is the first in a series of blog posts in which I plan break down the formula taught to first-year legal writing students to reveal its logical roots. A deeper understanding of the formula will show why lawyers use it, why it’s effective, and why—despite appearances—it’s actually not so formulaic. Peeling back its layers will also allow us to see that the formula is not the end-all, be-all of legal reasoning, and that there are circumstances when it should be tweaked or thrown out altogether.

Logic, Smogic. I’m a lawyer, not a philosopher.

If a thought like this just crossed your mind, fair enough. You certainly can get by without understanding the logical underpinnings of the legal writing formula taught to first-year law students. I did, for a time. But I guarantee you that if you stick with me and dip your toe into the subject, you will have a much better appreciation of how the law works and an enhanced toolkit you can use to make effective legal arguments. Hopefully that’s incentive enough.

Types of Logical Reasoning

Any argument, legal or otherwise, contains at least two parts: one or more premises and a conclusion that follows from those premises. “Logical reasoning” is, at its heart, the process we use to move sensibly from premises to conclusions.

Logicians have identified two primary types of logical reasoning. Lawyers use both. They are:

• Deductive reasoning: Reasoning that results in a guaranteed conclusion. If a deductive argument’s premises are true, then the conclusion is certain.
• Inductive reasoning: Reasoning that results in a likely conclusion. If an inductive argument’s premises are true, then the conclusion is probable.

Some resources (including some introductory philosophy textbooks) erroneously describe deductive reasoning as “arguing from general to specific” and inductive reasoning as “arguing from specific to general.” While it’s true that deductive and inductive arguments often follow these structure, they don’t always, as we will see.

The “Formulas” of Logical Arguments

Legal arguments are logical arguments. If you want a judge to rule for your client, you need to convince the judge that your premises (facts and law) adequately support your conclusion (your client should win). Part of this advocacy requires you to present your premises and conclusions in a sensible structure that the judge can follow. This is especially important in a typical legal issue that involves multiple sub-arguments, some of which are deductive and others of which are inductive.

Fortunately, logicians have created structures for logical arguments that make them easy to understand. All of these structures share a common pattern: provide each premise, do so in a sensible order, and then provide the conclusion at the end. For example, the classical way to structure most deductive arguments is with a syllogism with two premises and a conclusion. For example:

All law students are mortal.
Kim Kardashian is a law student.
Therefore, Kim Kardashian is mortal.

If you look closely at this example, you can discern a “formula” is at play here that ensures this argument makes intuitive sense. In future posts in this blog series, we’ll deconstruct this example to reveal its formula, explore the formulas of inductive arguments, and relate our findings to work of lawyers in drafting effective legal arguments.

*Question, Answer, Law, Explanation, Interweaving, Comparison, Policy, Answer. This is obviously the superior acronym. Never mind that I just made it up; look at how many letters it has!

The first U.S. Congress to ever meet did something that few people today might think possible: it passed a law allowing noncitizens to vote. In readopting the Northwest Ordinance of 1787, members of the Founding Congress declared that noncitizens could vote in federal territories northwest of the Ohio river. Then they went further, allowing noncitizens to vote in the first state constitutional conventions held in those territories. It was hardly remarkable at the time. Many of the original 13 states had allowed noncitizens to vote since colonial times, and with the Founders’ encouragement, many new states admitted after the Constitution was ratified allowed noncitizens to vote as well.

This forgotten history may seem surprising today. But back then, the Founders considered it patriotic to fully welcome immigrants into this blossoming country by giving them a voice in their communities. Noncitizens continued voting throughout much of the United States for over 100 years, helping to shape the country from its birth through the early 20th Century. Many American citizens today have forefathers who immigrated to this country and were honored with the right to vote.

Voters should continue to respect the traditional freedom of states and local governments to expand the right to vote, including to noncitizens if they wish. But a new anti-voter movement, spearheaded by Citizen Voters, Inc. and its shadowy political donors, has declared this tradition is wrong. Although no state has allowed noncitizens to vote in state or federal races since 1926, this movement wants to stamp out all remnants of America’s noncitizen suffrage. Their plan? Amend state constitutions to take away the freedom of cities, towns, and school boards to decide for themselves whether noncitizens can vote in local races.

This movement just landed a major victory, securing enough petition signatures to put such a constitutional amendment on Florida’s 2020 election ballot. This is happening even though only a tiny handful of localities, most of them in Maryland, allow noncitizens to vote in local races. Florida, along with all of its cities and school boards, chose to abandon America’s heritage of noncitizen voting well before this movement began.

This raises some obvious questions: why are political elites suddenly spending millions of dollars to start a new battle over noncitizen voting? Especially in a state like Florida, where noncitizens already cannot vote at any level? Is the real goal to prey on unfounded fears of noncitizens, encouraging voters to turn out at the polls and vote for anti-immigration candidates? Such a ploy would have been unfathomable to the Founders, who refused to use noncitizens as political pawns and honored them with the right to vote.

Even those who disagree with noncitizen voting have a strong reason to reject these constitutional amendments: protecting their own right to vote. Although it might seem harmless for states to constitutionally prohibit noncitizen voting in places where noncitizens already cannot vote, it’s far from it. America has a history of political elites taking cherished freedoms away from people they disfavor. The antidote has often been opposition at the state and local levels. But by using state constitutional amendments, this new anti-voter movement seeks to prevent state legislatures and localities from ever overturning new bans on voting. Weaponizing state constitutions against some voters creates a dangerous precedent that threatens all voters. If state and local governments can no longer safeguard the right to vote for one group, there’s no telling whose right to vote could be next.

Voters can prevent this slippery slope by embracing America’s proud tradition of allowing communities to enfranchise noncitizens. Floridians—and voters in other states that may soon consider similar proposals—should see this new anti-voter movement for what it is and vote down its unpatriotic state constitutional amendments. It might sound old fashioned, but the Founding Fathers respected states’ rights to expand the vote to noncitizens. Today’s voters should too.

I am excited to announce that I have accepted an offer from The Journal of Law & Politics to publish my new article, Equalizing the Political Rights of Renters and Homeowners. In it, I propose model legislation, the “Renters Bill of Political Rights,” to protect renters’ rights to engage in political activities and prevent political retaliation from landlords. Publication is expected in December or January. My current draft is linked below, and I welcome feedback!

Current draft on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3246723

ABSTRACT

The promise of democracy has not been kept to renters. The First Amendment protects renters and homeowners alike from governmental speech suppression, but neither landlord-tenant law nor civil rights law secures renters’ political rights from landlord interference. Landlords wield enormous power to censor what renters say, limit who they say it with, and even control what they hear—and renters rarely have legal recourse when landlords choose to exercise this power.

This articles analyzes the diminished political rights of renters and proposes new legislation to put renters and homeowners on equal ground. Rather than importing wholesale from First Amendment doctrine or elevating “political ideology” to a protected status, legislatures should enact a Renters Bill of Political Rights that protects renters—and those who wish to speak to renters—from landlord retaliation for their political activities. This approach is the most compatible with existing landlord-tenant law and avoids being underinclusive and overinclusive in the rights it protects. Above all, it enables renters to participate in American democracy without fear that they will lose their home.

Update: The final version has been published! It’s available to download for free on SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3246723

Mitch McConnell on Kavanaugh: “I think everyone understands there is a presumption of innocence. We should go into these hearings with a presumption of innocence.”

No. The Senate confirmation process isn’t “due process” for judicial nominees. It’s our due process. It’s there to protect us, the American public, from unqualified nominees. There’s a reason why it takes a majority vote to confirm a nominee. If there is a presumption, it’s that the nominee is unqualified until they convince a majority of the Senate otherwise.