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Thursday, October 16, 2008

Is IRAC Good or Evil? The Next in a Series of Posts on LRW.

I say good. 

Virtually every LRW teacher will teach IRAC in some form or another.  For many, it may well be the centerpiece of writing instruction.  God knows that there are problems with teaching students IRAC, though.  It can make their writing superficial, too structured, too rote, and not analytical enough.  Still, broached the right way, IRAC is a powerful tool for the lawyer.

Why teach/learn IRAC?

The first thing to know is that some version of the IRAC structure is what a law-trained audience expects to read.  A talented writer can write brilliant analysis with some radical non-IRACy structure, but the busy judge, attorney, or law clerk reviewing it will find it difficult to read.  Imagine looking at the front page of the newspaper and finding that the lead story is written as a lengthy poem in iambic pentameter, or as a first-person narrative.  Poetry and first-person narrative writing can be graceful, brilliant, moving, informative, and profound.  But if you are looking at the front page of the newspaper, you probably want the news delivered to you in the format that you expect; and if it isn’t, the author has made your life harder than he should have.  Thus, the first reason to IRAC is that this is what the profession expects.

Second, IRAC is a useful tool for structuring legal writing, and we must give the novice a structure.

Third—and this is a topic for something much more than a blog post—IRAC does something for lawyers, because it presents what are often normative and value-based arguments as formalist and scientific arguments and conclusions.  Although many claim that "we are all realists now," that's not how cases are won or lost.

As much as we badmouth IRAC—experienced attorneys scoff at it, judges disdain it, and students hate it—it serves a central function. Indeed, go deconstruct any experienced attorney’s most recent brief or any decent judicial opinion (including those authored by the scoffers and disdainers) and you will find some version of, or riff on, IRAC. Lawyers write in IRAC even when they aren’t conscious of it, and it provides a useful way to write a persuasive analysis of the law.

That said, it is emphatically the LRW instructor’s job to teach students to IRAC in a sophisticated rather than superficial way—IRAC is not the be-all, end-all of legal writing.  It is extremely malleable, and there are lots of variations on it; it may even make sense to eschew the structure altogether in a particular case.  But as I have told my students, you need to understand and have control over the convention that you are choosing to reject, and you must be able to articulate why you are rejecting it in any particular case.

Posted by Hillel Levin on October 16, 2008 at 09:15 AM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink

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Evil, because at least for common-law subjects, students think that there is One Rule, which there generally isn't. Though I think you make some compelling points. This year, with the 1Ls, I'm suggesting IPDC, which is basically a variant -- the "P" is basically what plaintiff says the RA is, the "D" what the defendant says the RA is -- their statements of the R are frequently different, and that's common and legitimate. Vive la revolution.

Posted by: Jason Solomon | Oct 16, 2008 10:59:02 AM

In this crowd, there shouldn't be much trouble with playing devil's advocate...

IRAC is evil.

(1) If IRAC was an unvarnished good, one would expect that in the half-century or so since it gained dominance that legal opinions and briefs would have adopted the IRAC structure. That would mean that statements of facts and procedural history would no longer lead opinions and briefs.

(2) IRAC emphasizes doctrine over facts. That's a different academic field and approach: political science. We do students no favors by pretending that the facts are as clean as that.

(3) One's conclusion necessarily influences one's statement of the issue(s) at hand. IRAC, by separating the question from the answer in the way that it does, discourages real reflection on the "outcome determinative" aspects of the way the question gets stated, particularly in procedural questions.

* * *

Perhaps because I'm a second-career lawyer, I rebelled against IRAC in law school and never used it (except on a couple of LRW assignments for which it was required). Or perhaps it's because my academic background included both high-end humanities and core natural sciences at a high level. Either way, IRAC never worked for me, and in my experience it encourages both bad writing and sloppy, deterministic thinking.

Posted by: C.E. Petit | Oct 16, 2008 10:59:07 AM

First, CE:

1. No one suggested that IRAC is an unvarnished good. Further, statements of fact and procedural history aren't part of IRAC. IRAC comes after the statements of fact and procedural history. Most importantly, the vast majority of briefs (and most judicial opinions) do, in fact, follow some kind of IRAC structure. To be sure, the good ones aren't rote, and they often riff off of IRAC. But you can easily identify where the issue (or conclusory) statement is, where the development of the rules are, where the analysis/application is, and where the conclusion is. I had my students deconstruct briefs and opinions in precisely this way--and asked them why lawyers and courts diverged from the most basic structure in some cases. The reasons are easily articulable. The point is that judges and lawyers use some variation of IRAC even when they don't mean to.

2. If IRAC is used in the rote manner that I reject, it might lead to the emphasis of doctrine over fact. It need not do so.

3. Many LRW instructors encourage students to do all of the research and form their conclusions before crafting issue statements. It depends on the genre of writing and the context.

****

Jason--

Let me suggest "evil if done poorly." The idea that there is One Rule that simply needs to be stated is a deep, deep problem. It isn't a problem with IRAC, though--but rather a problem with how it is being taught or employed. IRAC can't be all evil if you're doing a riff on it! ;-)

Posted by: Hillel Levin | Oct 16, 2008 1:13:11 PM

I thought IRAC was a rule for writing exam answers, not memos or briefs or papers. It's certainly good for the bar.

Posted by: Chris | Oct 16, 2008 1:53:36 PM

I think IRAC's main purpose is to force the "A". As I tell my students occasionally, "application" is what distinguishes lawyers from researchers. The main thing I want to avoid is "RRRRRRRRRRRRRRRRR" -- a string of case holdings with no discussion of relevance. I ("issue," or as I think of it, "topic sentence") and C are just plain old good paragraph structure that everyone should be using anyway. Put that together and it's IRAC.

That said, I also tell my students that once they learn to write in IRAC form, they should feel free to jettison it -- and in fact many people in practice do, as my colleague Jessica Slavin has pointed out. I went back and looked at my own briefs in practice, and lo and behold, it was hard to find a standard IRAC paragraph anywhere.

Posted by: Bruce Boyden | Oct 16, 2008 11:38:55 PM

I don't think IRAC is inimical to the facts. A good IRAC essay is going to be IRAAAAAAAAAAAAAAAAC, and there's plenty of room (and there ought to be pleny of) facts in the analysis.

Posted by: Drew | Oct 17, 2008 3:16:37 PM

Once again, my esteemed professors at Marquette Law make the point I wanted to say :-) Professor Boyden, Professor Slavin, and all of the other MU Law professors approach the IRAC/CREAC/whatever formula you want to call it in the way that I think is most powerful: they teach it as a fundamental, then tell us that we can discard it so long as we can be darn sure that we're conveying the information accurately.

I can say honestly that while I do tend to write in a IRAC format -- it helps me organize and strengthen my work when I force myself to compile the law first and THEN apply it -- I don't hesitate to break convention when I feel like it's stifling me. IRAC isn't a mantra; it's a rule, like the five-paragraph essay style we all used to write in grade school, and it has times when it works and times when it doesn't. But when I feel overwhelmed and lost in a subject -- for example, when I'm interning for the Public Defender's Office and I'm asked to write a five-issue motion-memo -- I'm grateful to have that standard to fall back on as a guidepost to get my arguments out.

But let's call a spade a spade here. As a friendly 3L who often helps friends proof their writing, I've had the luxury of observing almost 3 years now of the way students write. Now, I admit that I occasionally use one too many commas, or perhaps draw out sentences longer than I should. But in looking at the writing of some of my peers . . . well, it's bad. I mean REALLY bad. As in "shake your head and wonder how the heck they managed to get in to law school writing like that" bad. And judging by the writing of my friends at other law schools, I have a hard time believing this is an epidemic unique to MU Law.

Why does that matter? Well, because I personally believe that while IRAC is a crutch, it's a necessary one. I don't think LRW professors teach IRAC and/or the other forms because of some "I learned it, so now you have to" vindictiveness; I think it's done because it's clear that the vast majority of entering students would never be able to form a clear legal argument without it. Just like you have to learn to walk before you can run, you need to be able to use IRAC before you can learn how to discard it. Sure, I think we'd all prefer if law students didn't need to be taught that, but seeing as how that's a pipe dream for now, it may behoove us to embrace IRAC, at least as a way to keep students from being completely incapable of writing good legal documents.

Posted by: Andrew Golden | Oct 18, 2008 11:46:13 PM

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