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The Importance of First Principles

William Marks

The Importance of First Principles
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Is it enough to have the case law on your side? As appellate lawyers, we live within a system of precedent: Decisions from higher courts bind lower courts, and decisions from earlier panels bind subsequent panels. In most cases, however, appellate advocates lack the fortune of having binding precedent under which our client clearly prevails. Much of our work thus involves analogizing to cases that reach the outcome we want and distinguishing cases that do not.

But precedent can be messy. The relevant cases may provide conflicting guidance. The facts of older cases may not neatly map onto the twenty-first-century world. Your case may involve a factual or legal wrinkle absent from previous cases. The list goes on. And even when you have seemingly on-point precedent, the court in the earlier case may not have considered certain arguments being raised now. For those reasons, the winning party on appeal normally has more than precedent on its side; its position best comports with first principles.

What are first principles? They are the foundational, enduring concepts on which the rules in our legal system are based. They answer the question “why does my position make sense from a legal perspective?” Take, for example, a case involving the application of a statute. The question from first principles is whether your position comports with the statute’s meaning, using the traditional tools of statutory interpretation. In a tort case about the existence of a duty of care, the question from first principles is whether it makes sense to charge an individual in the defendant’s position with the obligation to prevent the harm in question. In a case involving application of the federal or a state constitution, first principles concern the constitution’s text, history, and design (including structural principles like the separation of powers).

Showing that first principles support your position is critical in appellate practice, even if precedent is on your side. Appellate judges want to get the law right, and they are cognizant that the rules they adopt in one case will govern others. Appellate courts are thus more likely to rule in your client’s favor—and not to distinguish away your best cases—if you can show that your position comports with first principles. Questions concerning first principles also often arise at oral argument, which could catch an unprepared advocate flat-footed.

When and how to employ first principles depends on the particulars of a case. When arguing about the meaning of a new statute before a state court of last resort, most of your brief and oral presentation may focus on first principles. Where precedent strongly supports your position in an intermediate court of appeals, first principles may play the supporting role of explaining why the relevant precedents make sense.

Regardless of how first principles are ultimately employed, the party that uses them most effectively has a significant advantage on appeal. So when you pick up a new case, do not forget to stop and think, “Why does my position make sense from first principles?” in addition to “What does the case law say?”