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NYLS Journal of International and Comparative Law

What is the 'R' in 'IRAC'

Abstract

The 'R' in 'IRAC' stands for rule. IRAC is a format for organizing briefs of or for cases, or examination answers. It rests on an enactment theory of judicial decision making: judges in deciding cases either lay down rules as would a legislature or follow rules already laid down in prior judicial decisions. I argue that this key aspect of IRAC is not merely wrong, it is seriously misguided.

One might have thought the enactment theory had been put to rest by the anti-positivist arguments of Dworkin, Fuller and others a quarter of a century ago and more. In academic writing perhaps it has; but inpedagogy it is alive and well, although not always explicitly. It carries with it misleading conceptions of stare decisis and its use, the power of judges, the sources of legal argument, notice of the law, justice in decisions, and the nature of legal practice. I assemble arguments on these and other points and address criticisms of them.

I also attempt explanations of why IRAC and its rules should have become so popular. Fifty years after thedeath of Stalin, and more than ten since the fall of communism, it is as if 'Uncle Joe' were still at large: people generally and students in particular want to be told what to think. In an era of marketing with customer satisfaction as a priority, there is ample incentive to satisfy that wish. On the other hand, perhaps IRAC's Rules are merely efficient ways of conveying doctrine, and do little permanent harm.

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