What follows is a standard set of argumentative maneuvers that constantly
repeat themselves in legal debate and that can be used to support or under-
mine each other; it draws heavily on the ideas and inspiration of Duncan
Kennedy of Harvard Law School.* This typology is obviously stylized and
static. In practice, the better exponents of legal reasoning should be able to
weave these di√erent argumentative strategies in an organic and elegant web
of persuasive advocacy. I have tried to illustrate their operation by reference
to actual cases. In order to appreciate fully the play of these argumentative
moves, the reader should read the cases that are referenced. While each pair
of arguments might not apply with equal weight and facility to every dis-
pute, almost any legal issue can be worked through using some blend of
these techniques. They can be divided into two broad groupings: Precedent
and Policy.
(A) Precedent
The following paired strategies enable lawyers to argue about and reason
with rules or past decisions. Contrary to received wisdom, the more expan-
sive or flexible interpretation does not necessarily correlate with the most
liberal or progressive outcome, and the more limited or rigid interpretation
does not necessarily correlate with the most conservative or reactionary
outcome: their e√ect will depend on the context in which they are used, the
particular twist that they are given, and the background of entitlements
against which they function.
*D. Kennedy, A Semiotics of Legal Argument, 42 Syracuse L. Rev. 75 at 103 (1991), and D. Ken-
nedy, A Critique of Adjudication: fin de siècle 137–56 (1197). See also J. Boyle, The Anatomy of a
Torts Class, 34 Amer. U. L. Rev. 1003 (1985, and J. Balkin, The Crystalline Structure of Legal
Thought, 39 Rutgers L. Rev. 1 (9186).
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