Wilson Ray Huhn, University of Akron TEACHING LEGAL ANALYSIS USING A PLURALISTIC MODEL OF LAW The principal thrust of my presentation will be to illustrate the range of legal arguments that may be utilized in any area of the law, and to describe the strengths and weaknesses of each type of argument. I propose that there are five general types of legal arguments: arguments may be based upon text, intent, precedent, tradition, or policy. Each type of argument possesses characteristic strengths and weaknesses. For example, in general, arguments based upon precedent may be attacked because the cited case is not authoritative, because the case is distinguishable, or because it ought to be overruled. Also, in general, policy arguments may be challenged because the predictive statement of consequences is inaccurate, because the underlying value is not one of the purposes of the law, or because the underlying value is outweighed by a competing value. Finally, the different kinds of legal arguments compete with each other; for example, there are longstanding disputes in the law between text and intent (plain meaning versus purposivism in the interpretation of administrative agencies’ enabling acts) and between text and policy (formalism versus functionalism in Separation of Powers disputes). In sum, legal arguments may be attacked on their own terms (intramodal challenges) or they may be attacked by setting one form of argument against another (intermodal challenges). My presentation is summarized in the outline that follows, which also serves as an outline of the materials I will distribute at your meeting should I be chosen as a presenter. These materials are excerpted from a lengthy article now in submission to law reviews, Teaching Legal Analysis Using a Pluralistic Model of Law. THE FIVE KINDS OF LEGAL ARGUMENT Text Plain Meaning Intratextual Canons of Construction Intent Original Intent Intent of the Legislature Administrative Intent Intent of the Parties or Testator Precedent Tradition Traditional Ways of Holding Property Traditional Rights Traditional Ways of Governing Social Traditions Trade Usage Policy Predictive Statement Evaluative Judgment INTRAMODAL CHALLENGES TO LEGAL ARGUMENTS ATTACKS ON ARGUMENTS BASED UPON PLAIN MEANING The Text Has a Different Plain Meaning The Text Is Ambiguous ATTACKS ON ARGUMENTS THAT ARE BASED UPON CANONS OF CONSTRUCTION The Canon of Construction Does Not Apply A Conflicting Canon of Construction Applies ATTACKS ON INTRATEXTUAL ARGUMENTS There is a Conflicting Intratextual Inference Drawn From the Same Text There is a Conflicting Intratextual Inference Drawn From Different Text ATTACKS ON ARGUMENTS BASED UPON INTENT The Evidence of Intent Is Not Sufficient The Framers of the Law Did Not Anticipate Current Events The Person Whose Intent Was Proven Did Not Count ATTACKS ON ARGUMENTS BASED UPON PRECEDENT The Case Does Not Stand for the Cited Proposition The Opinion Did Not Command a Majority of the Court The Opinion Was Not Issued By a Controlling Authority The Court's Opinion Was Not Holding But Rather Obiter Dictum The Case Is Distinguishable Because of Dissimilar Facts The Case is Distinguishable For Policy Reasons There Are Two Conflicting Lines of Authority The Case Has Been Overruled The Case Should Be Overruled ATTACKS ON ARGUMENTS BASED UPON TRADITION No Such Tradition Exists There Is a Conflicting Tradition ATTACKS ON ARGUMENTS BASED UPON POLICY The Predictive Judgment Is Not Factually Accurate The Policy Is Not One of the Purposes of the Law. The Policy is Not Sufficiently Strong The Policy Is Not Served In This Case. The Policy Is Outweighed by a Competing Policy INTERMODAL CHALLENGES Foundational Attacks Heirarchial Attacks Relational Attacks