February 17, 2005

Sun's Surrender

by PG

IRAC is not coming naturally to me. (By the way, did y'all know that IRAC is a relatively recent development in legal education? Someone asked a lawyer at a lunch presentation about whether she used IRAC in her real world practice, and she didn't know what he was talking about.) I blame it on bioethics training, where after identifying the competing principles involved, we tended to analyze a situation through casuistry, triangulating from previous cases to work out our preferred solution to the dilemma. This seems similar to precedential thinking, except that one has to write for law school with the rule first, the specific situation second, and this muddles me.

I think part of the trouble is that IRAC feels unnatural and falsely assured. I didn't start with a rule already in place, so I want to walk my reader through my own analysis, how I managed to pull a rule out of a series of cases. Of course, the difference between law and ethics is that in the former, the courts already have declared rules based on cases. They may modify, narrow and even reverse these rules, but they have them, whereas ethicists have to limp around with principles and intuitions.

Which is all preface to the intended point of this post: At which point does the general public stop worrying about a life? In Houston there is a baby nearly five months old who probably will be taken off his ventilator soon, against his mother's wishes. He has a fatal condition that eventually will cause him to suffocate, and is kept sedated for comfort. No one except his mother -- who named him Sun and whose mental health has been questioned by the hospital caring for her son -- thinks he ought to stay on the ventilator until his lungs become incapable of sustaining his body. Even a Jesuit priest and ethicist says "To insist the child had to endure this and the hospital had to provide treatment that made no medical or physical sense would have been a tremendously awful thing."

I happen to agree with those who find indefinite life-sustaining measures for someone incapable of requesting them and whose condition cannot be improved to be morally suspect. But that rule would seem to encompass the case of Terry Schiavo, and Ms. Schiavo has many people very vigorously lobbying for her life to be sustained. For Ms. Schiavo, there is terrisfight.org to reverse legal judgments; for Sun, there is a hospital duly paying his mother's legal fees to ensure due process before they turn off the machines.

February 17, 2005 09:55 PM | TrackBack

IRAC appears to be a rather poor substitute for the Aristotelian syllogism, contributing to sloppy thinking in some ways. The Rule is roughly equivalent to the Major Premise; the Application corresponds to the Minor Premise; and the Conclusion is what it is. The Issue appears to be nothing more than a short summary of what to expect from the syllogism, and in no way is a necessary part of the proof of the conclusion's soundness. Law professors may think it's a recent invention, but IRAC is as old as rational thought.

Also, your citation to a definition for "casuistry" doesn't do justice to it, and you seem to be suggesting that casuistry follows the determination of "principles". I think you may have it backward. Casuistry follows agreement on facts, being argument about the significance of those facts. Here's a short blog I did recently on it: http://legalphil.blogspot.com/2004/12/so-mr-lincoln-how-many-legs-does-mule.html

Davis Nelson
Legal Philosophy Blog

Posted by: Davis Nelson at February 18, 2005 08:17 PM

Hey, don't be hatin' on the IRAC.

As an attorney who works at an appellate court, I can tell you that IRAC really works. If you're writing a brief, it helps it be clear and persuasive. If you're writing a judicial opinion, it helps, again, to keep it clear, but most of all, to keep it organized, not random thoughts sprawling all over the place.

It doesn't have to be a straitjacket. I'm talking about a nuanced view of IRAC, which has plenty of room for subissues, asides, and even humor.

IRAC. Try it, you'll like it.

Posted by: Anonymous at March 2, 2005 11:54 AM

IRAC is particularly inappropriate for understanding appellate opinions, which are most (>95%) of what I've been assigned to read in law school.

As David Nelson points out, the R in IRAC corresponds to a major premise in Aristotelian logic. Appellate opinions often involve a whole separate line of reasoning about various alternatives that might be adopted for that major premise. Moreover, when they finally do get around to adopting one, the minor premise(s) is (are) often suppressed or implied (making the "syllogism" more properly and enthymeme).

I recommend Joseph M. Williams et al.'s "The Craft of Argument," as an introduction to informal reasoning that is quite useful to law students.

Posted by: Michael Martin at March 2, 2005 01:29 PM
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