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188

CHAPTER

Argumentation in Law

KEY TERMS

narratives, p. 189

burden of proof, p. 190

preponderance of evidence, p. 190

equipoise, p. 191

prima facie case, p. 191

commonplaces, p. 196

analogy, p. 198

logic, p. 199

consistency, p. 199

noncontradiction, p. 199

validity, p. 199

syllogism, p. 199

Nine days after being sworn in as President of the United States, Barack Obama

signed his first Act of Congress into law: the Lilly Ledbetter Fair Pay Act of 2009.

The new law, an amendment to the Civil Rights Act of 1964, specifies that the

180-day statute of limitations on filing legal claims of discrimination, included in the Civil

Rights Act, resets after every discriminatory paycheck. The law was a direct rebuttal to

the argument made by Justice Samuel Alito, Jr. in rejecting Lily Ledbetter’s claims against

the company where she worked for almost 20 years. This interaction between the legisla-

tive, executive, and judicial branches of the federal government exemplifies the judicial

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CHAPTER 12 Argumentation in Law 189

several decisions that for the first time reflected the influence of two new justices, Chief

Justice John Roberts and Associate Justice Samuel A. Alito, Jr., appointed by President

George W. Bush.

In this chapter, our focus is on argumentation in legal spheres, and Ledbetter will

serve as a case study. Obviously, our discussion will be selective in seeking to demonstrate

how legal argumentation can proceed rather than to examine the case in its entirety. And

NARRATIVES IN LEGAL ARGUMENTATION

Aristotle distinguished between deliberative (policy) and forensic (legal) rhetoric by not-

ing that deliberative rhetoric addresses questions of the future: What policies should we

adopt to serve people best in the coming years (1991, 47–49)? It often happens, though,

that the policies arising from deliberative decision making are interpreted as questions

of law. Forensic rhetoric, said Aristotle, addresses questions of the past: What happened

back then and how can we decide about it in a way that best serves the needs of justice

today? Part of that decision making, as revealed in Ledbetter , can rest on interpreting the

intent of the legislators. When courts try to advance claims about congressional intent,

however, they may find themselves forced to make deliberative arguments. So, Aristotle’s

distinction is not quite as precise as he suggested.

Because legal argumentation deals with claims about what has happened in the past,

it must, as the law puts it, find the facts about what happened. The expression, “find the

facts,” makes the process sound like crime scene investigators zealously searching for any

formation that is produced in a way that provides support for their argumentative case.

Narratives Construct the Facts

Even after the most diligent research and discovery process, however, there are rarely

enough facts to dictate a decision, and that is why argumentation is required. It is always

possible to construct different narratives that seem faithful to what appear to be the facts,

and there are almost always contradictory versions of the facts. Anthony G. Amsterdam

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construct the facts that comprise them. For this reason, much of human reality and its

‘facts’ are not merely recounted by narrative but constituted by it” (111).

The materials turned up during research and discovery put constraints on the kinds

of narratives that can be woven around them, but the structure of the narrative, what

answers it gives to such questions as these posed by Amsterdam and Bruner, in return

construct what will be recorded as facts:

1. What is ordinary and legitimate?

2. What constitutes time?

3. What human beings strive for?

4. What comprises Trouble ?

5. What makes character?

6. What shape human plights can take? (112–113)

Narratives Must Satisfy the Demands of a

Prima Facie

Case

In November of 1998, Lilly Ledbetter filed suit against the Goodyear Tire and Rubber

Company, Inc., in U.S. District Court for the Northern District of Alabama, Eastern

Division. She claimed that during the almost 20 years she had worked as a supervisor and

area manager in the Goodyear tire production plant in Gadsden, Alabama, she had been

discriminated against through low salary because of her sex. She claimed, among other

charges, that Goodyear had violated Title VII of the Civil Rights Act of 1964 as amended:

UNLAWFUL EMPLOYMENT PRACTICES

SEC. 2000E-2 [Section 703 ]

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color, religion, sex, or national origin

2 ;

Title VII places the burden of proof on the plaintiff, Lilly Ledbetter (review the discus-

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1. Whether the salary decisions applied to Ledbetter constituted an employment practice;

2. Whether the salary decisions were made with discriminatory intent.

2. She performed work substantially equal to work of the dominant class (males).

4. The disparity was attributable to gender-based discrimination.

Ledbetter’s Narrative

My story began in 1979, when Goodyear hired me to work as supervisor in their tire produc-

tion plant in Gadsden, Alabama. I worked there for nineteen years. During that time, there must

have been eighty or so other people who held the same position as me, but only a handful of

them were women. But I tried to fit in and to do my job. It wasn’t easy. The plant manager flat

out said that women shouldn’t be working in a tire factory because women just made trouble.

One of my supervisors asked me to go down to a local hotel with him and promised if I did, I

would get good evaluations. He said if I didn’t, I would get put at the bottom of the list. I didn’t

say anything at first because I wanted to try to work it out and fit in without making waves. But

it got so bad that I finally complained to the company. The manager I complained to refused to

do anything to protect me and instead told me I was just being a troublemaker. So I complained

to the EEOC [Equal Employment Opportunity Commission]. The company worked out a deal

with the EEOC so that supervisor would no longer manage me. But after that, the company

treated me badly. They tried to isolate me. People refused to talk to me. They left me out of

important management meetings so I sometimes didn’t know what was going on, which made it

harder to do my job. So I got a taste of what happens when you try to complain about discrimi-

nation. When I started at Goodyear, all the managers got the same pay, so I knew I was getting

as much as the men. But then Goodyear switched to a new pay system based on performance.

After that, people doing the same jobs could get paid differently. Goodyear kept what everyone

got paid confidential. Over the following years, sometimes I got raises, sometimes I didn’t. Some

of the raises seemed pretty good, percentage-wise, but I didn’t know if they were as good as the

raises other people were getting. I got a “Top Performance Award” in 1996.

Over time, I got the feeling that maybe I wasn’t getting paid as much as I should, or as much

as the men. I heard rumors that some of the men were getting up to $20,000 a year extra for over-

time work. However, I volunteered to work as much overtime as any of them, but I did not get

anywhere near that much pay in overtime. I figured their salaries must be higher than mine, but

I didn’t have any proof—just rumors. Eventually one of my managers even told me that I was, in

fact, getting paid less than the mandatory minimum salary level put out in the Goodyear rules. So

4 For convenience, we have excerpted elements from Lilly Ledbetter’s testimony before the U.S. House of

Representatives Committee on Education and Labor, June 12, 2007. For the entire text go to

http://web.lexis-nexis.com/congcomp/document?_m=91c42c61ea7dbdf2d62a55e6dlaa395 .

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I started asking my supervisors to raise my pay to get me up to Goodyear’s mandatory minimum

salary levels. And after that, I got some good raises percentage-wise, but it turned out that even

then, those raises were smaller in dollar amounts than what Goodyear was giving to the men, even

to the men who were not performing as well as I was. I only started to get some hard evidence of

what men were making when someone anonymously left a piece of paper in my mailbox at work,

showing what I got paid and what three other male managers were getting paid. Shortly after that,

I filed another complaint of discrimination with the EEOC in 1998, when I got transferred from

my management job to a job doing manual labor, requiring me to lift 80-pound tires all shift long.

It turned out that I ended up getting paid what I did because of the accumulated effect of

pay raise decisions over the years. In any given year, the difference wasn’t that big, nothing to

Goodyear’s Narrative

Petitioner [Ledbetter] worked at Goodyear’s Gadsden, Alabama, tire plant for nineteen years

as a Supervisor and later as an area manager. She was hired on February 5, 1979, and was ini-

tially paid the same salary as a similarly situated male employee. In 1980 and 1981, Petitioner

received the same pay increase as all other area managers at the plant. Beginning in 1982,

Goodyear determined the salaries of its managerial employees using a system of annual merit-

based raises. Raises were based on individual performance appraisals that incorporated an

employee’s performance ranking, present salary, and salary range. . . . Petitioner and her co-

workers thus had their salaries reviewed at least once annually by plant management.

Petitioner worked in several different departments under several different supervisors be-

fore 1992. Earlier in her career, she was included in two general layoffs. Her longest layoff

started in 1986 and lasted into 1987. She did not receive salary increases in 1986 or 1987

because of that layoff. She was also included in another general layoff in 1989.

5 For convenience, we have excerpted this statement contained in the “Brief in Opposition,” to the Petition

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CHAPTER 12 Argumentation in Law 193

also ineligible for a raise in 1997 because she was slated to be included in an upcoming general

layoff. She did not receive a salary increase in 1998 because her manager at the time concluded

that her performance did not warrant an increase.

An important aspect of Goodyear’s story was that Ledbetter’s salary was set through per-

formance reviews, and the supervisor whom she claimed had openly discriminated against

her was dead and thus unable to testify. Goodyear implied that he would have denied the

discrimination charge and would have claimed, instead, that his review was proper and

Ledbetter’s performance simply did not deserve a higher salary. After all, Goodyear sug-

gested, the alleged discrimination by this supervisor occurred years ago and Ledbetter is

only now complaining about it.

The Jury’s Decision

The trial court in Alabama reported the jury’s decision this way

6 :

The Jury rendered a $3,843,041.93 verdict in this case, concluding that Plaintiff Lilly M.

Ledbetter had proved that Defendant Goodyear probably paid her a disparate salary because

of her sex. The jury’s finding that Plaintiff was subjected to a gender disparate salary is abun-

dantly supported by the evidence. It found that Plaintiff lost $223,776.00 because of this dispar-

salaries exceeds $60,000, it is not supported by the evidence.

The jury’s award of compensatory damages for mental anguish in the amount of $4,662 is

solidly supported by the evidence.

The jury’s punitive damage award of $3,285,979 must be reduced. The punitive damages,

coupled with the compensatory damages may not [according to the law] exceed $300,000.00.

A reasonable jury could have found $500,000 to be a reasonable amount sufficient to pun-

ish and deter Goodyear. Given the statutory limitation and the compensatory damage award, it

follows that the punitive damage award must be reduced to $295,338.00.

After taking relevant laws and defense arguments into account, the judge concluded that

an award of no more than US$360,000 was appropriate in this case. The Ledbetter nar-

rative thereby forms the basis for what the law will call the facts in the case because the

winning side’s narrative is what the jury “found” to be fact. The judge edited the jury

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Goodyear, however, was by no means ready to give up. It is one thing to win the right

to craft the narrative that constructs the facts; it is another to survive the clash of argu-

ments on the law. The appropriate decision makers now shifted from a jury of Ledbetter’s

peers to a panel of nine justices, two of whom were recently appointed and not well

known. The appellate process is more complicated than we describe here. In reality there

are always various levels of courts of appeal, and cases must follow the prescribed route

step-by-step, and only rarely do they end up in the U.S. Supreme Court.

Justice Alito’s Narrative

Petitioner Lilly Ledbetter worked for respondent Goodyear Tire and Rubber Company at its

Gadsden, Alabama, plant from 1979 until 1998. During much of this time, salaried employees

at the plant were given or denied raises based on their supervisors’ evaluation of their perform-

ance. In March 1998, Ledbetter submitted a questionnaire to the EEOC alleging certain acts of

sex discrimination, and in July of that year she filed a formal EEOC charge. After taking early

retirement in November 1998, Ledbetter commenced this action, in which she asserted, among

other claims, a Title VII pay discrimination claim.

Justice Ginsberg’s Narrative

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama,

from 1979 until her retirement in 1998. For most of those years, she worked as an area man-

ager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the sala-

ries of men performing substantially similar work. Over time, however, her pay slipped in

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CHAPTER 12 Argumentation in Law 195

Title VII provides that a charge of discrimination “shall be filed within [180] days after

the alleged unlawful employment practice occurred.” Ledbetter charged, and proved at trial,

that within the 180-day period, her pay was substantially less than the pay of men doing the

same work. Further, she introduced evidence sufficient to establish that discrimination against

female managers at the Gadsden plant, not performance inadequacies on her part, accounted

Justice Alito used the impersonal reference to “Petitioner Lilly Ledbetter,” and fo-

cused on a central action of performance evaluations and quality of work. Justice Ginsberg

mentioned Ledbetter’s name in what could be seen as a personal reference and empha-

sized the gradual degradation of her salary over time. Justice Alito reported that the lower

court threw out some of Ledbetter’s claims, and he spoke of “certain acts,” “past pay

ARGUMENTS ON THE LAW

Those differences in narrative become quite important as justices build the arguments on

the law. The legal argument we will primarily discuss centers on the 180-day statute of

limitations in Title VII:

ENFORCEMENT PROVISIONS

SEC. 2000E-5 [Section 706 ]

(e) (1) A charge under this section shall be filed within one hundred and eighty days after the

alleged unlawful employment practice occurred .

Justice Alito, along with four other justices, concluded that Ledbetter had failed to meet

the 180-day demand: The unlawful employment practice occurred more than 180 days

before she filed her claim. Therefore, her claim must be dismissed. Even her own story,

Alito observed, includes the fact that toward the end of her work with Goodyear she was

receiving high percentage raises. Justice Ginsberg, along with three other justices, argued

that every time a paycheck was issued that was lower than that of the men because of sex

discrimination another “unlawful employment practice occurred.” So, her claim was filed

within the 180-day requirement. Therein lies the debate we shall examine.

When arguments are presented to courts of appeal, the claims focus on errors alleged

to have occurred in the trial. With the fact situation more or less set in the record, lawyers

now claim that the application of the law to the facts was improper. Goodyear argued

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196 PART 3 Applications

that the Court should have thrown out the Title VII charge, along with others that were

rejected, because of the failure to satisfy the time limits. Thus, the Court erred, made a

Commonplaces in Legal Argumentation

In Chapter 2 , we introduce the concept of commonplaces as standard, common, widely

recognized, and accepted ways of putting arguments together. We identify them as part of

the starting points for argument because people need to establish forms of common ground

in language, facts, presumptions, probabilities, and commonplaces if they are to interact

reasonably and effectively. Within spheres, then, it is possible to locate the commonplaces

that are used with sufficient regularity as to become part of the characteristics of the sphere.

In Chapter 4 , we discuss the nature of arguments. There we discuss a number of types of

arguments that have appeared in argumentation across many spheres and over thousands

of years. They include such standard commonplaces as logical deduction, generalization,

cause, sign, analogy, and authority. In legal argumentation, we will find some of these more

typical commonplaces along with some that are generally found only in legal arguments.

Decide Only Enough to Dispose of the Case. Appellate courts are presented with many

objection to his daughter having this religious phrase forced on her. The court, probably

wary of opening up a divisive discussion of the separation of church and state, dismissed the

claim because the father was not the legal guardian of the daughter at the time he filed the

claim and, therefore, lacked standing before the court. In a manner of speaking, the court

dodged a bullet by making this simple decision rather than tackling the more explosive one.

The Court Will Consider Only Questions Posed. Justice Alito opened his opinion by ob-

serving that Ledbetter could have asked the court to consider a number of questions, but

she limited herself to only one, and that is the only one that will be addressed:

Whether and under what circumstances a plaintiff may bring an action under Title VII of the

Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received

during the statutory limitations period, but is the result of intentionally discriminatory pay

decisions that occurred outside the limitations period.

Courts will be receptive to arguments that claim that the petitioner might have been

successful by appealing other questions, but if the petitioners do not ask the questions,

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CHAPTER 12 Argumentation in Law 197

the court should not do it for them. The courts consider only questions posed . On the one

hand, it might seem frustrating to learn that Ledbetter might have won the case if only she

had made other arguments. On the other hand, it is not uncommon, and may have been

so in this case, that the purpose of the appeal is less motivated by a desire to win an award

and if they fail to do so, the court will almost certainly make the simple and restricted

decision to reject the claim, even if a lawyer’s failure punishes a client. The Supreme

Court rejected a claim that was not timely filed even when it was accepted as fact that

the judge had given lawyers the wrong deadline.

9 Ledbetter’s case was rejected, including

point of the clock.

Justice Alito argued that, to satisfy the demands of the statute of limitations,

Ledbetter had to satisfy both of the elements of the law—an employment practice and

discriminatory intent—both occurring within the 180-day period. The central element of

a disparate treatment claim such as Ledbetter made, said Justice Alito, is discriminatory

9 Bowles v. Russell , No. 06-5306; 127 S. Ct. 2360; 2007 U.S. LEXIS 7721.

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198 PART 3 Applications

themselves actionable, but they are relevant in determining the lawfulness of conduct

within the period.” This definition, Justice Ginsberg claimed, is more faithful to prec-

edent, more in tune with the realities of the workplace, and more respectful of Title

in the precedent.

Analogy: Present Case Is Analogous to a Precedent. When we say a precedent “applies,”

we refer to an argument based on the commonplace of analogy . Justice Alito argued that

Lilly Ledbetter’s case is analogous to the facts of a case previously decided by the U.S.

Supreme Court, Nat’l R.R. Passenger Corp. v. Morgan (2002 U.S. LEXIS 4214). In that

environment takes place within the statutory time period. (11)

Also in Morgan , the Court explained that the statutory term employment practice gener-

ally refers to “a discrete act or single ‘occurrence’” that takes place at a particular point

in time. Discrete acts are defined as decisions to terminate, failure to promote, denial of

transfer, and refusal to hire, among others.

acts. The Morgan decision placed hostile work environment claims in that category. Their very

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CHAPTER 12 Argumentation in Law 199

nature involves repeated conduct that cannot be said to occur on any particular day. It occurs

over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of

acts of discrimination that occur outside the 180-day statute of limitations are

time barred from consideration.

Minor Premise: Ledbetter’s alleged acts of discrimination occurred outside the 180-

day statute of limitations.

Conclusion: Ledbetter’s alleged acts of discrimination are time barred from

Ginsberg’s argument can be set in an equally valid syllogism:

Major Premise: The law, as expressed in our decision in Morgan , says that considera-

tion of the entire scope of a hostile work environment claim, including behavior

alleged outside the statutory time period, is permissible for purposes of assessing

liability as long as any act contributing to that hostile environment takes place

recurrent and cumulative creation of a hostile work environment. And this discussion, of

course, rests on competing narratives of Ledbetter’s experience.

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Courts Should Respect Legislative Intent. In the constitutional history of the United

Congress to correct an erroneous interpretation of their intent. Of course, this Congress

included different people than those who passed the Civil Rights Act of 1964, and a fu-

ture Congress might have a different “intent.” The dialogue is ongoing.

With that said, arguments predicated on being faithful to legislative intent carry

weight. Justice Alito argued that to accept Ledbetter’s claims, “would distort Title VII’s

dicates that Congress contemplated challenges to pay discrimination commencing before,

but continuing into, the 180-day filing period.”

Policy Arguments Can Support Legal Arguments. Although courts are expected to rest

decisions on legal arguments alone, it is not uncommon to find policy arguments brought

in to explain and give support to legal decisions. Having argued that the court must re-

Alito, using the commonplace of reductio ad absurdum ,

10 claimed that if Ledbetter’s

10 Taken from studies of logic, the strategy of reductio ad absurdum proceeds by carrying an argument’s

premises to their logical extreme so as to expose their inherent weakness or fallacy.

not testify in his own defense.

Justice Ginsberg argued that Ledbetter did not procrastinate unduly. Although dis-

crete acts of discrimination can be readily identified and should bring a quick com-

plaint, what Ledbetter experienced was different. “Compensation disparities” argued

Justice Ginsberg, “are often hidden from sight. It is not unusual for management to

Justice Ginsberg argued, “the EEOC’s interpretations mirror workplace realities and

merit at least respectful attention.”

In the last paragraph of Justice Ginsberg’s dissent, which she uncharacteristically de-

livered orally from the bench, she said, “This is not the first time the Court has ordered a

cramped interpretation of Title VII, incompatible with the statute’s broad remedial pur-

The prospect of stale claims is less daunting for employers when all that is at stake is back pay

for the period of disparity. But when compensatory damages are also allowed and the underly-

ing events occurred so long ago that critical defense witnesses are unavailable or dead [as was

the case in Ledbetter ], the balance shifts decidedly against asserting today claims of discrimina-

tion based on intentional acts committed long ago. (12)

12 See 42 U.S. C. 2000e-5(e)(2).

11 This definition can be found at www.lectlaw.com/def/1056.htm .

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CONCLUSION

Argumentation in law involves questions of fact and of law. When Lilly Ledbetter made

her claim of discrimination, the steps in critical decision making were invoked to decide

what had happened to her. Lawyers for Ledbetter struggled to find documents, such as

records of pay for other employees doing similar work, records of performance evalua-

tions, recollections of assignments, comments, attitudes, and the like, that might give evi-

dence that she had been treated differently because of her sex. At the same time, lawyers

markable way, the narratives that are told may well work in return to constitute the facts.

We saw how reality shifted from narrative to narrative as the storytellers sought to influ-

ence the decision making.

Although the research leading to the competing narratives went on, legal research also

occurred. Lawyers on both sides read the appropriate statutes such as the Civil Rights Act

In making its decision, the majority and the dissenters on the court used a variety of

commonplaces in their arguments that tend to characterize legal argumentation. Courts

try to decide only enough to dispose of the case and no more, and they will not consider

questions the petitioner does not ask. Meeting time limits, or failing to do so, can be a

quick way to dispose of a case. Arguments over interpretations and definitions consume a

great deal of legal argumentation as courts try to satisfy the demands of stare decisis , and

this involves many arguments from analogy. Traditionally, logic has been important to

law, and it remains so today.

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CHAPTER 12 Argumentation in Law 203

EXERCISES/PROJECTS

1. Find a 2-hour period either from 9:30 to 11:30 a.m . or from 1:30 to 3:30 p.m . to spend in your

local court—municipal, state, or federal. It would be a good idea to call the clerk of courts a

2. On the Internet, go to www.supremecourt.gov and click on the decision in the following case:

Albert Snyder, Petitioner v. Fred W. Phelps, SR., ET AL. 562 U.S. _____ (2011); 2011 U.S.

LEXIS 1903. Read the syllabus that summarizes this case involving members of the Westboro

Baptist Church picketing the funeral of Marine Lance Corporal Matthew Snyder. The pick-

eters had signs saying, “God Hates the USA/Thank God for 9/11,” “America is Doomed,”

“Thank God for Dead Soldiers,” Pope in Hell;” “Priests Rape Boys,” “God Hates Fags,” and

other similar expressions. Albert Snyder, the father of the dead Marine, sued the church and

its members for intentional infliction of emotional distress, intrusion upon seclusion, and civil

conspiracy. Write an argument supporting your position on this case, using legal arguments as

much as possible, and prepare for an in-class debate on it.

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