The Tools of Argument

1. “The art of reasoned persuasion is an iterative, recursive heuristic, meaning that we must go back and forth between the facts and the rules until we have a good fit. We cannot see the facts properly until we know what framework to place them into, and we cannot determine what framework to place them into until we see the basic contours of the facts. The great economist Friedrich Hayek said, “Without a theory, the facts are silent.”

2. “Argue for Procedural Benefit: To Win on Substance, Maximize Your Procedural Advantage. Good lawyers, like good athletes, know that small sources of advantage are important. Each of those small sources of advantage makes our chances of winning greater, and if there are a lot of them, they make our chances of winning much greater.”

3. “It turns out that we as individuals and we as societies have many values, and there are often areas in which our values are inconsistent with one another. This is why the framing strategy discussed in the prior section is always available. Moreover, when we make rules, we often fail to anticipate all the ways in which the values we seek to implement could conflict with other values and all the ways in which the rules made now could conflict with other rules made earlier or later.”

4. “Fragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, unprincipled, undisciplined feeling.” Justice Felix Frankfurter, 1962”

5. “The important point here is the temporal one. Laws (and contracts) are prepared in advance to control later behavior. Legislation is the mechanism by which societies agree in advance about what to do to prevent or affect specified behavior.”

6. “This was one of the first instances where an advocate emphasized the law-in-action over the formalistic pronouncements of the law-in-the-books. The term “Brandeis brief” has come to refer to any use of policy-oriented extra-legal arguments in briefs.”

1. Distinguish Between Valid and Sound Arguments

A valid argument has logical structure where conclusions follow from premises, but may still be wrong if the premises are false. A sound argument is both valid AND has true premises. Understanding this distinction helps you evaluate arguments more critically and construct stronger ones.

2. Identify Common Logical Fallacies

Recognizing fallacies like ad hominem attacks, false dichotomies, strawman arguments, and appeals to authority helps you spot weak reasoning in others' arguments and avoid these errors in your own thinking. Fallacies may be persuasive but they're logically invalid.

3. Evidence Quality Matters More Than Quantity

Strong arguments rely on high-quality, relevant evidence rather than overwhelming amounts of weak evidence. Evaluate sources critically, considering expertise, bias, methodology, and relevance. One strong piece of evidence often outweighs dozens of weak or irrelevant examples.

4. Address Counterarguments Proactively

Strong arguments acknowledge and address the best opposing viewpoints rather than ignoring them. This demonstrates intellectual honesty, shows you understand the complexity of issues, and strengthens your position by explaining why alternatives are less compelling.

5. Structure Arguments for Maximum Clarity

Present arguments in logical order: state your thesis clearly, provide supporting premises with evidence, address counterarguments, and conclude with a strong summary. Clear structure helps audiences follow your reasoning and makes your arguments more persuasive and memorable.