The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument

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Have you ever read a legal opinion and come across an odd term like the fallacy of denying the antecedent, the fallacy of the undistributed middle, or the fallacy of the illicit process and wondered how you missed that in law school?  You’re not alone: every day, lawyers make arguments that fatally trespass the rules of formal logic—without realizing it—because traditional legal education often overlooks imparting the practical wisdom of ancient philosophy as it teaches students how to “think like a lawyer.” In his book, The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument, lawyer and law professor Stephen M. Rice guides you to develop your powers of legal reasoning in a new way, through effective tips and tactics that will forever change the way you argue your cases. 

Rice contends that formal logic provides tools that help lawyers distinguish good arguments from bad ones and, moreover, that they are simple to learn and use. When you know how to recognize logical fallacies, you will not only strengthen your own arguments, but you will also be able to punch holes in your opponent’s—and that can make the difference between winning and losing. In this book, Rice builds on the theoretical foundation of formal logic by demonstrating logical fallacies through the use of anecdotes, examples, graphical illustrations, and exercises for you to try that are derived from common case documents. It is a hands-on primer that presents a practical approach for understanding and mastering the place of formal logic in the art of legal reasoning. Whether you are a lawyer, a judge, a scholar, or a student, The Force of Logic will inspire you to love legal argument, and appreciate its beauty and complexity in a brand new way.

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Table of contents

CONTENTS

PREFACE
ACKNOWLEDGMENTS


CHAPTER ONE: ANCIENT RULES OF LOGIC AND A NEW PERSPECTIVE ON ARGUMENT
1.1  A New Way of Thinking about Jazz—and Legal Argument
1.2  Persuasive Music, Logical Order, and Compelling Legal Argument
1.3  A Focus on One Logical Tool: Formal Logic
1.4  Formal Logic's Pervasive, Practical Advantage in Litigation
1.5  An Overview of this Book, Its Approach, Method, and Chapters
1.6  Chapter One in Review

CHAPTER TWO: LOGIC AND THE TOOLS OF DISCIPLINED, CREATIVE LEGAL ARGUMENT
2.1  Logic and the Craft of Making Legal Argument
2.2  Logic as a Tool of the Craft of Legal Argument
2.3  Logical Fallacies as Tools of the Craft of Legal Argument
2.4  Chapter Two in Review

CHAPTER THREE: FORMAL LOGIC AND ITS ROLE IN LITIGATION
3.1  A Practical View of Formal Logic’s Role in Litigation
3.2  The Pervasive Role of Formal Logic in Legal Argument
3.3  The "Formal" in Formal Logic, and How it Helps Support and Attack Legal Argument
3.4  Learning the Tools of Formal Logic
3.5  Using the Language of Formal Logic to Reveal a Legal Argument's Logical Form
3.6  Chapter Three in Review

CHAPTER FOUR: THE RULES OF FORMAL LOGIC AND THE LOGICAL FALLACY
4.1  Rules, Laws, and Legal Argument
4.2  Rules of Formal Logic
4.3  Chapter Four in Review

CHAPTER FIVE: THE FALLACY OF DENYING THE ANTECEDENT
5.1  Hypothetical Syllogisms, Order, and Inference
5.2  Identifying Hypothetical Arguments
5.3  Finding Antecedent Terms and Consequent Terms, Denied Terms and Affirmed Terms
5.4  Why Denying the Antecedent Term is Unpersuasive Argument
5.5  How Courts Have Used the Fallacy of Denying the Antecedent
5.6  Keys to Using the Fallacy of Denying the Antecedent to Evaluate and Improve Legal Argument
5.7  Chapter Five in Review
5.8  Exercise

CHAPTER SIX: THE FALLACY OF AFFIRMING THE CONSEQUENT
6.1  More on Hypothetical Syllogisms, Order, and Inference
6.2  Why Affirming the Consequent Term is Unpersuasive Argument
6.3  How Courts Have Used the Fallacy of Affirming the Consequent
6.4  Keys to Using the Fallacy of Affirming the Consequent to Evaluate and Improve Legal Argument
6.5  Chapter Six in Review
6.6  Exercise

CHAPTER SEVEN: THE FALLACY OF THE UNDISTRIBUTED MIDDLE TERM
7.1  Middle Terms, Distribution, and Bad Argument
7.2  Finding the Middle Term
7.3  Spotting Distribution, or Lack Thereof, in the Middle Term
7.4  Why an Undistributed Middle Term Makes an Argument Unpersuasive
7.5  How Courts Have Used the Fallacy of the Undistributed Middle to Evaluate Legal Argument
7.6  Keys to Using the Fallacy of the Undistributed Middle to Evaluate and Improve Legal Argument
7.7  Chapter Seven in Review
7.8  Exercise

CHAPTER EIGHT: THE FALLACY OF THE ILLICIT PROCESS
8.1  Two Kinds of Illicit Processes and Bad Argument
8.2  Finding the Major or Minor Terms
8.3  Spotting Distribution, or Lack Thereof, in the Major or Minor Terms
8.4  Why an Illicit Process Makes an Argument Unpersuasive
8.5  How Courts Have Used the Fallacy of the Illicit Process to Evaluate Legal Argument
8.6  Keys to Using the Fallacy of the Illicit Process to Evaluate and Improve Legal Argument
8.7  Chapter Eight in Review
8.8  Exercise

CHAPTER NINE: THE FALLACY OF THE NEGATIVE PREMISE
9.1  Negative Premises and Positive Conclusions
9.2  The Force of an Affirmative Conclusion
9.3  Finding Positive Conclusions and Supporting Them with Positive Premises
9.4  How Courts Have Used the Fallacy of the Negative Premise to Evaluate Legal Argument
9.5  Keys to Using the Fallacy of the Negative Premise to Evaluate and Improve Legal Argument
9.6  Chapter Nine in Review
9.7  Exercise

CHAPTER TEN: THE FALLACY OF AFFIRMING A DISJUNCT
10.1  Disjunctive Syllogisms and the Problem with "Or"
10.2  Identifying Disjunctive Arguments and Disjuncts
10.3  Why Affirming a Disjunct Might Be Unpersuasive Argument
10.4  How Lawyers and Judges Can Use the Fallacy of Affirming a Disjunct
10.5  Keys to Using the Fallacy of Affirming a Disjunct
10.6  Chapter Ten in Review
10.7  Exercise

CHAPTER ELEVEN: A FALLACY-BASED PERSPECTIVE ON LEGAL ARGUMENTATION FOR LITIGATORS AND JUDGES
11.1  Three Kinds of Legal Arguments and a Fallacy-Based Perspective on Evaluating Legal Argument
11.2  The Rules of Deductive Logic and Patterns of Fallacious Argument Revisited
11.3  The Hallmarks of Six Formal Fallacies in Legal Argument
11.4  Different Tools, Different Skills, and Different Perspectives for Thinking about Legal Argument
11.5  Limits of a Fallacy-Based Perspective on Legal Argument
11.6  Chapter Eleven in Review

CHAPTER TWELVE: LOGIC’S VALUE TO LAWYERS WHO SOLVE LEGAL PROBLEMS WITH ARGUMENT
12.1  The Place of Formal Logic in Legal Reasoning
12.2  A Focus on Framework
12.3  Logic as a Metalanguage for Argument
12.4  Logic’s Persuasive Force
12.5  A New Way of Thinking about Logic and Legal Argument—and Jazz
12.6  Chapter Twelve in Review

APPENDICES: EXERCISES: SOLUTIONS AND DISCUSSIONS
Appendix A Chapter Five: Breslin Real Estate Group, LLC d/b/a Breslin Real Estate Solutions v. Elderberry Software and Media, Inc.
Appendix B Chapter Six: Annalise Forester v. Graham C. Hayes
Appendix C Chapter Seven: Mack Bryce v. Eastern Ohio College
Appendix D Chapter Eight: SquareBarrell Solutions, LLC v. Interior Diameter, Inc.
Appendix E Chapter Nine: Toy-Vo, Inc. d/b/a Toypocalypse v. Collin Lewis
Appendix F Chapter Ten: Marathon Logistics III, Inc. v. Brule River Capital, LP

SUBJECT INDEX