Arizona Attorney - January 2014

Roscoe Pound noted that rules of law are
“[p]recepts attaching a definite detailed
legal consequence to a definite, detailed
state of facts.” 1
Legal Logic =
Inductive and Deductive
As stated, when the analogical comparisons get stronger, they
begin to look more like syllogisms.
This is why legal reasoning can be so dynamic. 2 The interplay
between inductive and deductive reasoning can be complicated
but it gives law authoritative force and the ability to respond to
new situations.
Again, Miranda v. Arizona, 384 U.S. 436 (1966), shows the
Supreme Court using both inductive and deductive reasoning to
make the Fifth Amendment relevant in the modern world:

Deductive Syllogistic Major Premise—“Today, then, there
can be no doubt that the Fifth Amendment privilege is available
outside of criminal court proceedings, and serves to protect per-
sons in all settings in which their freedom of action is curtailed
in any significant way from being compelled to incriminate
themselves.”

Deductive Syllogistic Minor Premise—“We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.

Deductive Syllogistic Conclusion—“In order to combat these
pressures and to permit a full opportunity to exercise the privilege
against self-incrimination, the accused must be adequately and
effectively apprised of his rights, and the exercise of those rights
must be fully honored.”
Miranda, 384 U.S. at 467. Throughout the opinion the Court
employed Induction as well:

Inductive Generalization—“Because of the nature of the
problem and because of its recurrent significance in numerous
cases, we have to this point discussed the relationship of the Fifth
Amendment privilege to police interrogation without specific
concentration on the facts of the cases before us.”
“We turn now to these facts to consider the application to these
cases of the constitutional principles discussed above. In each
instance, we have concluded that statements were obtained from
the defendant under circumstances that did not meet constitu-
tional standards for protection of the privilege.”
Miranda, 384 U.S. at 491.

Back to the Syllogism
As we see, the inductive process migrates us back to the deduc-
tive syllogism.

ARIZONA ATTORNEY JANUARY 2014 24 www.azbar.org/AZAttorney Roscoe Pound

1. Quoted in ALDISERT at 155.

Cicero denouncing Catiline

2. Louis Brandeis: “The brain is like the hand, it grows with using.” Quoted in PHILIPPA STRUM, LOUIS D.

BRANDEIS: JUS TICE FOR THE PEOPLE

102 (1989).

3. As Senior United States Circuit Judge Ruggero J. Aldisert advises, “To generalize and analogize effectively, you must: ( 1) jettison any dogmas and pet theories not supported by the cases, ( 2) confront relevant conflicting authority forthrightly, and ( 3) remember that the study and practice of law preclude mental inertia and laziness.” ALDISERT at 282.

4. Quoted in AN TONIN SCALIA & BR YAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 16 (2008).

5. Fallacy comes from Latin: fall; x m., f., n., (genitive fall; cis); deceptive, deceitful, fallacious, spurious.

6. Quoted in ALDISERT at 286.

“Think Like A Lawyer”

Inductive = The connections between pieces of information are permissive. If the argument has no defects of form, the conclusion is more probably true.

Deductive = The connections between pieces of information are necessary. If the argument has no defects of form and the premises are true, the conclusion must be true.