5.

3 RATIONES DECIDENDI: The Essence of Decisions

Occams Razor Principle the simplest explanation of a

phenomenon, the one that requires the fewest
assumptions or conditions is likely to be the correct one.
The Analysis of Precedent
o Distill facts into variables
o Determine which conditions are necessary and sufficient
Importance of Ration Decidendi
The Rule of Stare Decisis the binding precedent
- the way to define consistency
- a way of determining whether distinctions are
salient
- a way of determining whether the distinctions
make a difference

Point: The present case is governed by the precedent encapsulated in

the ratio decidendi of a long line of cases.
Counterpoint: No, the present case is distinguished from that line of
cases by salient facts and is governed by instead the ration decidendi
of a different line of cases.

5.4 OBITER DICTUM & Cheap Talk (an incidental remark)

anything the decision maker said that is not part of the ratio decidendi

Point: The present case is governed by the precedent encapsulated in

the ratio decidendi of a long line of cases.
Counterpoint: The alleged ratio decidendi tat you propose was mere
obiter dictum it was not necessary to the decision of the case and so
should not guide us now.

5.5 EXCEPTIONS THAT SWALLOW THE RULE

Point: You have broken the rule.

Counterpoint: The rule is so tattered with exceptions that it no longer
makes sense to apply it at all.
Counter-Counterpoint: The fact that there are exceptions shows that
we are still serious about applying the rule (this is a case in which the
exception may indeed prove the rule).

5.6 BREAKING PRECEDENT: Argument from conservatism may be

countered by an argument from innovation.

Point: All our precedents suggest that the law is against you, and there
are no available bases for distinguishing the present case.
Counterpoint: It is time to change the rule, there is no reason to adhere
to consistency with a foolish rule.

5.7 PASSIVE VIRTUES & PASSIVE AGGRESSION: Not to decide is to

decide.
-Sneaky procedural tricks used by judges to avoid deciding cases.
-Includes arguments that the:
> matter is not yet ripe for adjudication
> matter is moot or there is not a real case or controversy
> matter is not amendable to review
> plaintiff lacks standing
> court lacks jurisdiction
Passivity is alleged with conservatism: avoid deciding a case where all
the facts of the case may require development of a new rule.

5.8 SPECIFICITY & DELEGATION

The judge is a supervised agent of legislature - their function is to fill
in the gaps in general rules provided by the legislator.

Point: The judge has gone beyond the specific language of the statute,
engaging on excessive and undemocratic judicial legislation.
Alternatively, the referee has gone beyond the specific rules of the
game.
Counterpoint: The judge or the referee is charged with making
decisions. Where the law or the rules of the game are set in general
terms, we can infer that the legislator or rule-maker implicitly
delegated to the judge or referee discretion to fill in the details.

5.9 CITATIONS, FOOTNOTES, & THE PEDIGREE OF THE INFORMATION

The put up or shut up response to the critical epistemological
question in any argument: how do you know?

Point: There is my argument, and each component is fully supported by

the authorities cited in the footnotes.
Counterpoint: You win. I got nothing. / Alternative Counterpoint.

6.1 DETERMINING THE SALIENCE OF FACTS

We do not know which rules apply until we know the facts.
We do not know which facts are important until we know which rules
apply.

Point: Facts x, y, and z are the bases of my claim against you.

Counterpoint: In this type of case, x and y are relevant; but z is not.
And without w, they are insufficient to complete a claim against me.

6.2 EVIDENCE & MISSING LINKS

The evidence may become unreliable if your opponent cannot establish
that it was gathered properly or preserved properly. Circumstantial
evidence is good evidence, but it is not by itself conclusive evidence.

6.3 CAUSATION OF HARM & NEGLIGENCE

The causation of the harm is more a matter of social relations or public
policy than a matter of scientific testing of cause and effect.
Sole Causation the causal factor must be sufficient by itself to cause
the relevant effect, and no other causal factors contributed.

Point: You caused harm to me.

Counterpoint: My actions were only one factor without the other
factors, you would have experienced no harm.

6.4 BRANDEIS BRIEFS & SCIENTIFIC EXPERTS

- refer to any use of policy-oriented extra-legal arguments in briefs.
- statistical evidence is generally circumstantial evidence.
- it goes to correlation, rather than causation.

Point: I have statistical evidence that use of your product is strongly

correlated with harm, and we have tested and ruled out all conceivable
alternative causes.
Counterpoint: That is only circumstantial evidence and cannot be
accepted as proof or responsibility.
Counter-counterpoint: Circumstantial evidence is indeed not
necessarily conclusive, but strong correlation, combined with careful
evaluation and rejection of alternative cause, is highly suggestive.

6.5 QUALITY OF EVIDENCE: The Best Evidence Rule

Secondary source would not be accepted as evidence where primary
sources are readily available.
Always use the most persuasive evidence available.

6.6 EXCLUSION OF EVIDENCE

Point: The evidence proves my case.

Counterpoint: The key piece of evidence is inadmissible and so cannot
be considered as part of your case.