April 2008 • Vol. 28 No. 4 | An E-Publication of the Los Angeles County Bar Association

The Five Types of Argument Redux

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

My January 2008 column in County Bar Update, “Writing the Right Arguments on Short Notice,” disclosed an important secret about persuasive legal writing: There are only five types of legal argument.1 The advocate who knows these types of argument and how to make them wields a potent advantage. Yet, knowing the five types is not enough. The skillful advocate must marshal the best type of argument while attacking that of the opponent. Marshaling the argument entails knowing how the respective types of argument relate to each other—their relative persuasiveness. Wilson R. Huhn, professor and constitutional law research fellow at The University of Akron School of Law, provides the full explanation, but I want to discuss one of the most common cross-types: text and precedent versus public policy.

Before looking at this cross-type conflict, I should note some advocates and judges contend that only one type of argument, the text argument, is legitimate or “foundational.”2 Under this theory of advocacy, one type fits all. On the other hand, pluralists such as Justice Felix Frankfurter teach that “there is hardly a question of any real difficulty before the Court that does not entail more than one so-called principle.”3 So, if the text argument is not a “silver bullet” that invariably shoots down the other four types, how is the persuasiveness of the several types determined?

Professor Huhn answers that “[t]he standard of persuasiveness is found in the values that underlie each of the different types of legal argument….[E]ach type of argument serves a different fundamental value in our system of laws.” Values underpin the types:

Type  (Value)
Text  (Objectivity)
Intent  (Respect for popular sovereignty, democracy)
Precedent  (Stability, stare decisis)
Tradition  (Social cohesion)
Public Policy  (Allowing the law to adjust to new situations)4

This brings us to the common intertype conflict between text and precedent on one side and public policy on the other. Often, these are the “cases of real difficulty,” the hard cases that sometimes make bad law. Perhaps there is no better example than the case that every law student knows and most lawyers remember: Palsgraf v. The Long Island R.R. Co., 248 N.Y. 339 (1928).5

Although Justice Cardozo’s statement of the facts is more famous, the version in Justice Andrews’s dissent is more succinct: 

Assisting a passenger to board a train, the defendant’s servants negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servants knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger.6

On these sparse facts, how did Justice Cardozo decide whether the Long Island Railroad should be legally responsible to intending passenger Palsgraf? 

For Cardozo, the text and precedent type arguments persuaded. He cited 21 cases, 9 scholarly treatises, and 2 law review articles to support his holding that there is no liability without foreseeability.7 Valuing objectivity and stability in the law, Cardozo privileged logical consistency and symmetry.

Although Cardozo cited an array of texts and precedents, Justice Andrews and two other justices were not persuaded. They countered the texts and precedents with the public policy type argument. For the dissenters, the issue was proximate cause. Andrews frankly admitted that the scope of liability is not measured with geometric logic:

What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic: It is practical politics.8

Applying his sense of justice, Andrews found: “The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable.”

Tracing the series of events far enough to include Helen Palsgraf does indeed seem just, especially when weighing other facts about the case, facts that Cardozo omitted:9 Palsgraf was a 43-year-old single parent with three children who was working two jobs; her court fees and doctors bills were more than half her yearly income of $416; the defendant railroad, on the other hand, had assets of $114 million and carried 80 million passengers a year.
So which types of argument are more persuasive? Huhn and Robert W. Benson, professor of law, emeritus at Loyola Law School, share the same conclusion: It is a matter of values.10 In Palsgraf, then, it would appear that Cardozo protected corporate values: big business efficiency and the bottom line. But the larger court record tells a different story about the prevailing values. First, Palsgraf won her case in the trial court where her lawyer persuaded the jury that the railroad’s guards were “careless and negligent in the way they handled [the man with the package] after he came upon the platform and while he was boarding the train.” Foreseeability was not even in question.11 Second, her lawyer also persuaded the trial court to deny defendant’s motion for a new trial. Next, Palsgraf’s counsel persuaded the appellate division to affirm 2-1.12 Finally, her lawyer convinced three justices on the court of appeals that public policy also supported the judgment. All told, of the 23 people who had to be persuaded, 18 found for the plaintiff. Of course, the one counsel needed was Cardozo.

I wonder if counsel’s public policy argument would have persuaded Cardozo if he had argued on the basis of the esteemed justice’s landmark decision in MacPherson v. Buick Motor Co.?13 There, Cardozo held that manufacturers of defective automobiles are liable to ultimate buyers who are injured by them. In MacPherson, Cardozo rejected a long line of precedent and venerable treatises. He said he was persuaded by the public policy argument:

Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.14 

Perhaps, 12 years after Macpherson, Cardozo could have been persuaded to find that American railroads, like auto manufacturers, also were subject to the imminent danger principle. After all, in the year Palsgraf was injured, railroads killed 6,617 persons and injured 143,739.15 Maybe Cardozo would have followed his own precedent to promote the human values underpinning Palsgraf’s public policy argument. Had Cardozo embraced those values again, he could have joined the overwhelming majority who found in favor of Palsgraf.

1 Wilson R. Huhn, The Five Types of Legal Argument (2002).

2 Id. at 145-150 (discussing “originalists” such as Justice Scalia and Robert Bork).

3 Id. at 146, n. 340 (quoting Felix Frankfurter, Of Law and Men 43 (1956)).

4 Id. at 152.

5 See generally William H. Manz, The Palsgraf Case: Courts, Law, and Society in 1920s New York (2005).

6 Palsgraf v. The Long Island R.R. Co., 248 N.Y. 339, 347 (1928).

7 The full story of Cardozo’s handling of the case, including the professional, social, and political realities that influenced him are brilliantly recounted in a provocative new book: Robert W. Benson, The Interpretation Game: How Judges and Lawyers Make the Law (2008) (Chapter 7: “How Case Precedents Get Their Meaning: Palsgraf v. Long Island Railroad.”) Full disclosure: Bob Benson is a friend and colleague at Loyola Law School. The company he keeps notwithstanding, Bob’s book is an important contribution to legal education. 

8 Palsgraf, 248 N.Y. at 352.

9 Benson, supra note 7, at 133 (citing facts from John Noonan, “The Passengers of Palsgraf,” in Persons and Masks in the Law (2d ed. 2002)). 

10 Id. at 136; Huhn, supra note 1, at 150.

11 Palsgraf v. Long Island R. Co., 225 N.Y.S. 412 (1927) (quoting the sole question submitted to the jury).

12 Id. at 414.

13 MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916).

14 Id. at 391.

15 Benson, supra note 7, at 133 (quoting statistics from John Noonan’s “The Passengers of Palsgraf”).

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