LawProse Lesson #168: Structuring a textual argument.

LawProse Lesson #168: Structuring a textual argument.

Structuring a textual argument. Here’s a little-known secret of advocacy: courts tend to analyze questions of interpretation systematically — in this order: (1) text, (2) structure, (3) purpose, and (4) history. The courts, especially federal courts, have explicitly endorsed the technique. In fact, they developed it from the germ of an idea expressed by Justice Robert H. Jackson. In recent years, Supreme Court justices have so thoroughly embraced the technique that briefs from the Solicitor General’s Office routinely adhere to close variations on this template: The text, structure, purpose, and history of § ** demonstrate that *****. A.  The text of § ** indicates that *****. B.  The broad structure of the statute confirms that *****. C.  The underlying purpose of § ** is furthered by an interpretation that *****. D.  The legislative history of § ** underscores that § ** was intended to *****. This approach is powerful and persuasive. For the most thorough analysis on point, with more than a dozen examples, see Bryan A. Garner, The Winning Brief 660-73 (3d ed. 2014).

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