In our first year of law school we learn the building blocks of legal argument - the concept of reasoning from precedent, and the IRAC (Introduction, Rule, Application, Conclusion) formula that allows us to translate that reasoning into written analysis. Once I got over my resistance to the IRAC formula, I found it highly effective. Like GPS, it mostly guided me wherever I needed to go, and I came to rely on it.

And then one day I took my first trip to the edge of the map.

I was writing an appellate brief. The issue was not so much whether the court had correctly applied the law to the facts, but whether the court had chosen the right law to apply in the first place (statutes of limitations, as I recall). Each side had a preferred statute, and the choice of statute determined the outcome. (Sound familiar?)

Sometimes IRAC can be made to fit this situation. Instead of the usual precedents, we focus on meta-rules that place precedent into context (the canons of construction, or other guidance from courts and treatises on how to choose and interpret rules). For this particular brief, I was aided by two canons of construction: that a more specific statement trumps a general one, and a later statement trumps an earlier one. As my limitations statute was both more specific and more recent, I could adapt IRAC and "Apply" the canons to support my choice.

But it doesn't always work that way. The canons, in particular, are like a game of rock-paper-scissors-sooner or later, someone else will have the upper hand. When you're wrangling disputes over pure law (what it says, what it means, whether it's valid, or which one is best), it may be hard to use IRAC to organize the analysis.

Is there another option? Yes. Legal analysis can also be organized in the form of a narrative: a steady state, disrupted by trouble, followed by resolution. (It's a very old, very familiar way to organize information; the little story about my appellate brief, above, follows this pattern.)

Appellate judges often use this principle to great effect. For an example, let's take a look at Justice Antonin Scalia's recent opinion for the Court in Johnson v. United States (a case covered elsewhere in Minnesota Lawyer). While the facts in Johnson seem lively enough (felon with short-barreled shotgun takes on Minnesota's "progressive bookstores"), they merit only a single short paragraph, and the rest of the opinion takes on what some might consider a dry topic: whether the residual clause of the definition of "violent felony" in a criminal sentencing statute is unconstitutionally vague. (For those new to federal sentencing, "violent felony" includes "burglary, arson, or extortion, involves use of explosives, or [here comes the residual clause] otherwise involves conduct that presents a serious potential risk of physical injury to another." Why do we care? Because courts use this definition to determine whether a defendant's offenses are "violent felonies," and if enough of them are, the sentence becomes much longer.)

Still with me? Thanks. I will not address the wisdom of the statute, nor the quality of its drafting, but will merely note that the nature of the dispute makes traditional IRAC a tricky fit to organize the opinion. Merely applying Supreme Court precedents interpreting the residual clause to Johnson's facts will not resolve the question of whether the definition is unconstitutionally vague. And the canons of construction don't even show up to the party.

So how does Justice Scalia begin? With a steady state. In Johnson, that's the place governed benevolently by the Fifth Amendment's due process clause, where all the defense attorneys are strong, the prosecutors are good looking, and the criminal statutes are neither too vague to give notice nor so standardless as to allow arbitrary enforcement.

Into this placid and ordered world comes the Trouble: the definition of "violent felony" with its residual clause. Why is it a problem? Justice Scalia observes the beast closely, noting that courts must apply the clause to prior crimes without any guidance as to how to estimate the risk, or how much risk is enough. Here, Justice Scalia also notes that when courts' efforts to set a standard consistently fail, that may be evidence of vagueness.

Justice Scalia then walks us through the Supreme Court's recent cases interpreting the residual clause. Does the crime of attempted burglary present the required risk? Yes. What about to failure to report to prison? No. What about fleeing from the police in a car? Definitely. Okay, what about drunk driving? Nope. Had Justice Scalia been following IRAC as it's traditionally used, at this point he would have tried to harmonize these cases, then apply whatever rule emerged to the crime of possessing a short-barreled shotgun.

But he doesn't. Instead, he makes a larger point: the outcomes of these cases are inconsistent and unpredictable. And that, folks, means we have Trouble in Fifth Amendment City.

Because he has identified the Trouble as the vagueness of the residual clause itself, the resolution suddenly snaps into focus: the clause violates the Fifth Amendment and must be held unconstitutional. And, after addressing the dissent's counterarguments, that's exactly what the opinion does.

A word of caution: narrative structure (which, for the acronym lovers among us, I'll call SSTR, for steady state, trouble and resolution and pronounced "sister") is an organizational principle, not a substitute for analysis. It can help you develop a theme for why the law is the way it is, why it is evolving in a particular direction, and what ought to be done about it. But to turn that theme into persuasive analysis, you'll still need the elements of IRAC. In Johnson, you'll have noticed, the analysis is governed by two meta-rules: (1) vague criminal statutes violate due process, and (2) if courts can't apply a statute consistently after many attempts, the statute is vague. Those get applied to the "facts"-the court's failure to set a consistent standard-and analytically support the conclusion that the statute is unconstitutional. The organization and the analysis pull in the same direction, adding weight and credibility to the conclusion.

Adding narrative to your analysis has much to recommend it. Principally for persuasive writers, it takes into account a desired result. If you think a complaint doesn't state a claim, then you cast the lawsuit as the Trouble, and the resolution is to dismiss. On the other hand, if you're opposing dismissal, then you see the Trouble as the motion to dismiss, and the resolution is to deny it. Narrative organization breathes life into what could otherwise be just one darn case after another-it turns what would otherwise be background into the heart of the story. Best of all, it's interesting; readers actually want to find out how the story ends.

Published: Tue, Aug 04, 2015