The DNA of an Argument: A Case Study in Legal Logos

58 Pages Posted: 17 Apr 2009 Last revised: 8 Apr 2010

See all articles by Colin P. Starger

Colin P. Starger

University of Baltimore - School of Law

Date Written: September 15, 2009


This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on the procedural controversy over using § 1983 instead of federal habeas to seek DNA testing (the so-called Heck problem). The essential competing logics in this debate are unpacked through close readings of the clashing opinions of Judge Luttig and Chief Judge Wilkinson in the Harvey II case. The logos of Judge Luttig's argument in support of § 1983 DNA-access actions is classified as formal because it presents itself as a deductive application of the Heck rule whereas the logos of Chief Judge Wilkinson's counter- argument is classified as narrative because it interprets Heck as part of a larger story about the “morality of process.” Three primary claims are then advanced. First, based on an empirical review of all cases in the debate, it is argued that Judge Luttig’s proof has exerted a singularly persuasive influence on the § 1983 DNA access discourse. Second, it is claimed that the rhetorical success of Judge Luttig’s opinion derives from the formal logos of his Heck argument. Finally, the persuasive appeal of Luttig’s formal logos is attributed to its resonance with the relevant Supreme Court doctrine, which also evinces a formal logos in its approach to jurisdictional line-drawing. As this Article was accepted for publication prior to the Court’s decision in Osborne, a § 1983 DNA-access action, it used its rhetorical analysis to buttress an ex ante prediction that Heck would present no bar for William Osborne. In an ex post Epilogue, the (mostly vindicated) analysis is assessed.

Keywords: DNA, habeas, Section 1983, Heck, logic, rhetoric, logos, Aristotle, Perelman, Toulmin

Suggested Citation

Starger, Colin P., The DNA of an Argument: A Case Study in Legal Logos (September 15, 2009). Journal of Criminal Law and Criminology, Vol. 99, No. 4, Winter 2009; NYU School of Law, Public Law Research Paper No. 09-24. Available at SSRN:

Colin P. Starger (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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