Five Different Species of Legal Tests--And What They All Have in Common
31 Pages Posted: 11 Sep 2018
Date Written: August 29, 2018
As every law-school graduate knows, not all the legal world is categorical or elemental. Outcomes are often uncertain. This can be troubling news, but there is good news as well: first, the different species of legal tests (and there are at least five) are capable of being described, and their purposes understood. Second, most (if not all) rules have one thing in common: they are just if-then propositions.
In this essay, we explain some different species of legal tests: elements, factors, balancing tests, means-ends tests, and categorical tests. We also briefly discuss the best structure for legal reasoning—the conditional syllogism—and provide a new way of presenting that structure to students and practitioners alike. Finally, we discuss how to apply rules as if-then propositions, regardless what kind of test is being applied.
Keywords: legal reasoning, syllogism, deductive reasoning, law students, legal education, legal writing
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