Miller, N; B Charles, B --- "Meeting the Carnegie Report's challenge to make legal analysis explicit – subsidiary skills to the IRAC framework" [2010] LegEdDig 26; (2010) 18(2) Legal Education Digest 34

• Meeting the Carnegie Report’s challenge to make legal analysis explicit – subsidiary skills to the IRAC framework

---

Meeting the Carnegie Report’s challenge to make legal analysis explicit – subsidiary skills to the IRAC framework

N Miller and B Charles

59(2) Journal of Legal Education, 2009, pp192-220

Although the traditional view has been that teaching critical thinking is straightforward, more recently it has been suggested that the traditional view is seriously misleading. Cognitive psychology has taught us that the best students and, for that matter, the best experts, are those who master the subsidiary skills of analysis.

The IRAC framework is the generally accepted way of representing legal analysis. It begins by identifying the issue and the applicable rule, then matches facts to the law in an analysis or application, and then reaches a conclusion – together, Issue, Rule, Analysis, and Conclusion, or IRAC. This article adds to the discussion of IRAC by identifying and illustrating many of the subsidiary skills that students must acquire to effectively use the oversimplified IRAC framework. IRAC’s subsidiary skills will help them become self-learning, competent lawyers and citizens for life.

Law professors play a key role in teaching the subsidiary skills. They, who intuitively perform these subsidiary skills, have the responsibility to better understand the workings of their craft and to explicitly teach those workings.

This article attempts to illustrate how faculty can teach these skills by briefly highlighting the process that leads to the substantive outcome. Highlighting the process will teach students to be critical thinkers and self-learners for life.

Thinking: Mental energy, concentration, memory, organisation, and other mental states influence student success in law school. Thus, students should learn some of the practices that promote effective thinking.

Law school is not simply about acquiring a huge mental database. It is also about skill in creatively and flexibly using that database in remarkably complex ways.

Memory is also critically important to legal analysis. Memory actually involves three mental operations – organising, storing, and retrieving. Organising is often automatic, but many memories like those necessary for legal analysis must be organised with effort. Students should learn that a good way to increase storage and retrieval success is to review new information immediately and later.

Another way to improve thinking is to increase sensory integration, meaning to use more of one’s senses as one thinks about law studies. As students read using visual sense, they should consider speaking important phrases to activate aural and oral senses. Thinking can improve when senses combine with thoughts.

Reading: There are many ways to read, and some reading strategies hold more value for law students. Because law texts are a new genre for many law students, they must use a more analytic approach to read these texts productively. Analytic reading strategies include readiness, purpose, rereading, anchoring, evaluating, and hypothesising.

In general, to read law well students must learn to consistently step beyond the text. Expert law readers consistently question the legal text. For example, with the help of law professors, syllabi, casebook tables of contents, and introductory notes, students should first discern why they are reading the text.

Consider the specific example of reading a case. Law students typically receive valuable and much needed training in how to brief or outline cases. A lawyer questions the case’s text to identify the narrow issue, separate relevant from irrelevant facts, recognise the parties’ strategies, identify the rule or holding, separate out dicta, determine how sound the case is as authority, and identify and evaluate the holding’s rationale.

First, students should put the case in its context before beginning to read. Doing so focuses attention by giving purpose to their reading.

Second, after context is established, a case is then read for overview, to develop a framework or schema.

As part of the second step, students may then reread the case analytically, encoding their learning.

Third, after reading the case, students should decide how the case fits into their learning. They should synthesise the case with other rules and cases, asking how it modifies or adds to their knowledge. They should fit the holding into a diagram, mnemonic, or outline.

The foregoing discussion suggests that students learn four sets of skills by reading cases, usually in a certain order. First, a single case can be read for a determinate (clear) holding. Second, multiple cases can be read for a determinate synthesis of a whole legal subject, like all of the elements of a certain crime or tort. Finally, multiple cases can also be read for indeterminate trends or tendencies of courts in certain situations.

These suggested reading strategies and skills require substantial energy and motivation. Students may also be more satisfied and less anxious to the extent that they are able to identify and rely on internal reading motivation.

Conceptualising: Unless students form appropriate concepts through their law studies, they will be unable to use IRAC. For a student to know a concept means the student can recall it from memory, explain it to another, give examples and non-examples of it, and recognise when the concept applies to something students will encounter in law practice.

The ability to acquire appropriate concepts depends in part on word recognition. Recalling and using the right words, as symbols for larger meanings, is obviously an important subsidiary skill to the IRAC method. Recall is aided by specific images, words, and symbols.

The ability to acquire and use appropriate concepts requires the construction and use of more elaborate schema, a mental structure of connected concepts. Indeed, learning can itself be described as the purposeful, goal-directed changes in the organisation of concepts into schemas, just as knowing can be defined as possessing an appropriate schema. After students begin to recall and use various schemas, they will notice that they are gradually expanding and modifying those schemas as they add new concepts.

A cognitive map is a mental picture or outline connecting schemas to other schemas. Understanding can itself be defined as the appropriate linking of concept to schema and schema to other schema. With a professor’s help, and through activities like review and outlining, a student must gradually develop cognitive maps linking schemas to schemas, forming a single integrated body of knowledge.

Professors should point out that learning law tends to follow steps. The student first identifies the schema with which the new learning connects. Then, the student properly connects the new learning to the schema, expanding, dividing, or adjusting the schema to fit the new learning. Finally, the student connects new concepts and schema with earlier schemas. The quality of a student’s learning depends on the student’s skill and confidence in selecting and organising concepts and schemas. In other words, while a student is learning law, the student is also developing and improving methods of learning law. After all, lawyers are expert learners.

Reasoning: Most law professors would say that reasoning is the A of IRAC – application. But, as discussed below, reasoning is also used in forming the rule – the R of IRAC. The reasoning skills that follow will assist students in more effectively employing the IRAC framework. Critical reasoning is a method and an attitude, as well as an ethic. The central aspect of critical reasoning is the commitment and ability to be persuaded by reasons rather than by personality, prejudice, power, chance, or other factors.

Critical reasoning considers a statement’s content rather than its cause or author. Critical thinkers then reflect upon the statement in a way that enables them to consider grounds or reasons for agreeing or disagreeing with the statement.

Reasoned thought treats statements as if they are within open systems. One can consider a wider range of alternatives as to the grounds supporting or challenging a statement, each of which would differently shape a broader variety of possible future events. One can articulate and consider different possible goals, purposes, policies, interests, and meanings.

Generalising: Lawyers must synthesise rules and holdings to state more general rules of law before applying those rules to other specific cases. These general rules are created by recognising similarities between case rules, facts, and holdings.

This skill of generalising rules is one that students learn mainly by reading a series of cases. The untrained person will not readily generalise a broad rule from its specific application. A rule can be stated at many different levels, from very narrow to quite broad.

Students should notice that in many cases it is as simple as substituting a broader class or category of items or actions for the specific item or action stated in the original rule.

Students also need to evaluate what is a fair generalisation. Not every rule can be generalised to include every possible person, action, or item.

Specifying: Students must develop the skill of determining whether and how to make a rule more specific to a certain situation or application. This skill is not quite the same as applying the rule, because in making a rule more specific, a lawyer has not yet drawn a conclusion.

Lawyers constantly exercise this sense of moving from a general statement to a more specific one while carefully considering whether it is valid to make the statement more specific. Just because one has a relevant general rule does not mean that it always applies. Just because a general statement is valid does not mean that a more specific statement within the scope of that general statement is also valid. But it is the skill of a lawyer to know whether a general statement can be made specific and whether it applies.

Hypothesising: Creative hypothesising can lead to discovering unknown facts. A lawyer’s ability to hypothesise possible or probable facts can be a key skill for investigating and developing a case theory.

Lawyers help clients plan for future events and contingencies, such as when drafting contracts, forming business organisations, or conveying property. In these instances, lawyers are attempting to anticipate and predict the likelihood of future events.

When events have already occurred and the facts about them are well known, lawyers will often hypothesise other facts to fully appreciate the significance of the known facts. Generating hypothetical scenarios to compare and contrast other situations helps lawyers holistically judge the matter at hand. It is a form of inductive reasoning that constructs picture-stories as metaphorical imagery, similar to reasoning by analogy.

Deducing: Legal analysis requires deducing conclusions from rules, principles, definitions, premises, facts, and other conclusions. Classically, deductive reasoning involves stating a major premise followed by a minor premise followed by a conclusion, as in A=B (major premise), B=C (minor premise), therefore A=C.

The element’s definition is the major premise, the available facts are the minor premise, and articulating whether the element has been satisfied is the conclusion.

Deductive reasoning is closely associated with logic, comprehension, common sense, and order. Judges and lawyers use it because it is generally recognised as the most common, sound, and indispensable of the forms of reasoning.

Inducing: In legal analysis, the two forms of reasoning, deductive and inductive, are important companions to one another.

Inductive reasoning comes in two forms: analogy and inductive generalisation. In legal analysis – including the A in IRAC – reasoning usually proceeds by analogy. This form is reasoning by comparing particulars of one case to particulars of another case.

The other form of inductive reasoning – inductive generalisation – requires lawyers to form a general rule from patterns in particular data. So the reasoning is from particular to general. Assembling the facts of a case or reading a series of cases for a rule are each inductive processes. Lawyers are not given only the relevant, priority information. They must instead assemble it.

Certainly, reasonable minds looking at the same information for the same purpose might be expected to assemble similar statements. But, on the other hand, inductive processes readily call into play the examiner’s skill, experience, and perspective.

Abducing: To abduce is to infer that something may exist from the existence of other matters that are sometimes connected with the matter inferred.

One reason for lawyers to be good at abductive reasoning has to do with discovering unknown facts. To discover all the relevant facts, lawyers must be able to consider what the facts might be based on, so as to reasonably request evidence of them.

Evaluating: Evaluation has to do with making sound judgements, which of course is necessary to give sound legal advice.

As has already been suggested, the skill of evaluating begins with identifying the assertion, argument, or premise you must evaluate.

Once a student has recognised the assertion or premise and then determined the matters relevant to its evaluation, the student must then judge whether those matters are consistent or inconsistent with the premise.

Another subsidiary skill students must often exercise when evaluating an argument is whether the evidence supporting it is sufficient. The evidence may be relevant, meaning that it bears on the issue. It may be consistent, meaning that it tends to support the issue.

Contrasting: The prior section on hypothesising already suggests that simply generating appropriate hypothetical scenarios is not enough. The skill is to usefully contrast the scenarios with the facts at hand – comparing and contrasting the imagined scenarios to the actual facts.

The skill of contrasting is selective and intentional, not random. Contrasting in this manner helps illustrate the legal rule or standard in a larger context than that which is provided solely by the case facts. Lawyers frequently contrast other scenarios to actual case facts both silently for their own evaluative purposes and as a means of advocacy and argument.

Scaling: Students can improve their ability to contrast hypothetical scenarios by scaling them along a spectrum or continuum from exaggerated contrasting points at either end. Where there is a range of possible outcomes falling within or outside of a legal rule, they can construct a conceptual continuum to help with the legal analysis, arraying the actual case facts and hypothetical scenarios along the continuum.

Experienced lawyers construct and use these mental scales as an alternative way to evaluate and argue cases. Students, too, should reason with scaling by constructing an appropriate conceptual field and placing their case facts within it.

Satisfying: It has been mentioned in a section above that legal claims or charges often have what lawyers call ‘elements’. The plaintiff or prosecutor must prove or satisfy each element for the claim or charge to prevail. An element is satisfied when there is enough supportive evidence so that a reasonable person could conclude that the element has been satisfied. It has also been discussed above how elements are concepts that can be organised into schema, which are then fit into cognitive maps of a legal field or discipline.

To determine whether an element has been satisfied, a student must first understand how the element is defined.

To determine whether an element has been satisfied requires linking the element’s definition with the facts. It is a process of approximating, figuratively putting the facts alongside the definition to see if they are sufficiently related so as to be within the definition.

Although ‘satisfying’ an ‘element’ may sound scientific, a lawyer need not conclude with certainty. The art of being a lawyer is often in reaching appropriately qualified conclusions as to whether an element has been satisfied.

Weighing: In some instances, proving a claim or satisfying one of its elements will require weighing a list of factors. Students must recognise that factors are different from elements. Elements are conditions, each of which must be satisfied. Factors are various non-exclusive considerations that, by their accumulation or weight, tend to make the proof of a claim or element more or less likely.

Weighing a factor begins with the factor’s statement, proceeds to equating facts as bearing weight on the factor, and ends with concluding which side the factor favors.

Quantifying: Uncertainty exists in part because critical reasoning is also inherently uncertain. Students must recognise uncertainty as important and useful. Legal language is on one hand ambiguous or vague and on the other hand precise.

While the law may be vague, students must appreciate that legal analysis – application of law to facts – is precise. It demands that lawyers use specific word formulations to represent specific constructs. It does so to provide a level of clarity. They must learn that they can be precise in their legal analysis while recognising and accounting for its uncertainty.

Quantifying uncertainty involves not only judgement but experience. Experienced lawyers and judges (and inexperienced lawyers who are astute enough to find databases, reports, and other sources for experience) use uncertainty to reflect their experience.

Critical reasoning of the type required by the IRAC method and its subsidiary skills has great value when employed in individual cases on disputed issues.

This article suggests some of IRAC’s many subsidiary skills and a few techniques for teaching them. As law professors employ them, students will be able to use more of these skills with greater confidence and become reflective about their analytic capabilities. Early mastery of learning, whether early in a course or early in a career, tends to provide greater (and perhaps exponential) benefit. It is better to start ahead than to play catch-up.