Countering Unprincipled Invitations to Judicial Activism with Disciplined Legal Reasoning

Judicially active writing—what some call organic jurisprudence—erodes the Rule of Law by empowering judges to abandon their limited duty of applying the Constitution and laws, and instead to usurp the policymaking authority reserved to the elected Executive and Legislative branches. When lawyers encourage courts to create conclusions not textually grounded in statutory law or the Constitution, they bypass the democratic process and enable judges to substitute unprincipled judicial will for constitutional meaning and disciplined legal reasoning. This erodes predictability and fidelity to the law, which are core to the Rule of Law. Moreover, such activism does not remain neutral: it often restricts the free exercise of religious conscience, as seen in Establishment Clause jurisprudence that, summarily, without reasoned support, judicially imposed a “secular purpose” test. By judicially imposing such requirements by mere fiat, rather than analysis, courts pressure religious individuals and institutions to conform to state-imposed secular norms. The effect is to destabilize constitutional governance, concentrating power in the judiciary while marginalizing both the elected branches and the people whose consent undergirds legitimate lawmaking. 

In litigating appeals, an effective counter to attorney invitations to such judicial activism is disciplined legal reasoning. That means demonstrating precision in identifying the legal issue, clarity in stating the governing rule of law, logical structure in applying that rule to the facts, and a reasoned conclusion that naturally flows from your analysis. This disciplined method not only persuades but also sets the proper expectation for what judges themselves should model in real cases—ensuring that decisions rest on law and reasoning rather than rhetoric or preference.

When an opponent invites the court to reach an unreasoned conclusion pursuant to a political preference rather than what the law requires, counter the unprincipled invitation with disciplined legal reasoning.  That is, shine light in the darkness using the following process:

1. Identify the legal issue with precision.

2. State the governing rule of law clearly and accurately.

3. Apply the rule to the facts in a logical, structured manner – explaining WHY and HOW the law applies.

4. Reach a reasoned conclusion that flows naturally from your analysis.

This disciplined approach ought to mirror how judges ultimately resolve a case or controversary arising under the laws or constitution of a particular jurisdiction.

The Framework: “Whether – Under – Here – Therefore”

This four-part structure disciplines your reasoning and provides clarity for your reader.

• Whether: Always begin with an issue framed as a question, starting with the word “Whether.”

• Under: State the applicable legal rule or doctrine.

• Here: Apply that law to the facts presented.

• Therefore: State a clear, declarative conclusion.

This method ensures you do not wander, speculate, or collapse into unstructured narrative.

Framing the Issue

Whether [state the issue or question before the court]

Always begin by stating the issue in the form of a question that starts with the word “Whether”.

• This focuses your analysis on the precise legal dispute.

• For example:

  • “Whether a search conducted without a warrant is constitutional under the Fourth Amendment.”

  • “Whether the defendant owed a duty of care to  plaintiff under negligence law.”

Framing with “whether” disciplines your reasoning and ensures you tether your analysis to the controlling legal principle.

The Structured Approach: Under, Here, Therefore

Under [state the applicable law]

This is where you state the governing rule of law.

• Clearly articulate the legal standard, test, or doctrine.

• Cite leading authority if relevant (statute, constitutional provision, or case law).

• Example:

  • “Under the Fourth Amendment, searches conducted without a warrant are presumptively unreasonable, unless an established exception applies (Katz v. United States).”

Here [apply the law to the facts – explain WHY and How the law applies]

This is where you apply the rule to the facts presented in the hypothetical.

• Be methodical: compare the facts in the problem to the elements of the rule.

• Demonstrate how each element is (or is not) satisfied.

• Use transitional words like “because,” “since,” or “as a result” to show causal reasoning.

• Example:

  • “Here, officers entered the home without a warrant. While the government may argue exigent circumstances justified the entry, the facts show the suspect was already secured, and no immediate danger persisted. Thus, the exception likely does not apply.”

Therefore [state the conclusion]

This is where you arrive at a declarative conclusion reached from your application of the law to the facts.

• Notice the shift: you drop the word “whether” and state the legal result with confidence.

• Example:

  • “Therefore, the search violated the Fourth Amendment.”

  • “Therefore, the defendant did not owe a duty of care to the plaintiff.”

The conclusion is not tentative. It reflects disciplined legal judgment based on the structured application of law to fact.

Some Practical Guidelines

Use precision over verbosity. Judges often reward concise, accurate application over long-winded generalities. So, be precise, not verbose. Judges are not impressed with flowery writing but with disciplined reasoning.

Follow the sequence. Always begin with “Whether,” then move systematically through Under, Here, Therefore.

Anchor your analysis in controlling authority. Show the court you know the controlling rule. Use case names, statutes, or constitutional provisions where appropriate. While it is essential you do this step, know that most of the credit you receive for your answer usually comes in the application of the law to the facts to reach a conclusion.

Never forget that application is the key to an excellent analysis. Most lawyers can recite rules. The distinguishing mark of excellence is thoughtful application. Can you, when reasoning to a conclusion, explain why or how the law applies under any set of facts.

Assert confidence in your conclusion. Do not hedge endlessly with “maybe” or “it depends.” Instead, exercise legal judgment: “Therefore, the defendant is liable.”

Practice, practice, practice. The above disciplined framework works every time, and with practice, will eventually become part of who you are as a lawyer.

Examples

Below are examples across major subject matter areas. Each uses the framework of Whether – Under – Here – Therefore.

Constitutional Law

Issue: Whether a warrantless search of a home violates the Fourth Amendment.

• Under: Under the Fourth Amendment, searches of a home without a warrant are presumptively unreasonable, unless a recognized exception applies (Katz v. United States; Payton v. New York).

• Here: Here, officers entered the defendant’s home without a warrant. The government argues exigent circumstances, yet the facts show the suspect was secured outside and no immediate danger existed. This undermines the claim of exigency.

• Therefore: Therefore, the warrantless entry violated the Fourth Amendment.

Torts (Negligence)

Issue: Whether the defendant owed a duty of care to the plaintiff.

• Under: Under negligence law, a defendant owes a duty of reasonable care to foreseeable plaintiffs within the zone of danger (Palsgraf v. Long Island Railroad).

• Here: Here, the defendant left construction equipment unsecured near a public walkway. The plaintiff, a passerby, was struck when materials fell. Because the plaintiff was a foreseeable pedestrian within the zone of danger, a duty of care existed.

• Therefore: Therefore, the defendant owed a duty of care to the plaintiff.

Contracts

Issue: Whether a valid contract was formed between the parties.

• Under: A valid contract requires offer, acceptance, and consideration (Restatement (Second) of Contracts §17).

• Here: Here, Seller offered to sell goods at a stated price. Buyer accepted the offer without modification and tendered payment. This mutual assent, supported by consideration, satisfies the elements of contract formation.

• Therefore: Therefore, a valid contract was formed.

Criminal Law

Issue: Whether the defendant is guilty of burglary.

• Under: Burglary is the unlawful breaking and entering into a dwelling of another at night with intent to commit a felony therein (common law definition).

• Here: Here, the defendant broke a locked window at night and entered another’s home intending to steal valuables. The facts meet each element: breaking, entering, dwelling, nighttime, and intent to commit felony theft.

• Therefore: Therefore, the defendant is guilty of burglary.

Criminal Procedure

Issue: Whether the officer’s stop of the vehicle violated the Fourth Amendment.

• Under: Under the Fourth Amendment, a traffic stop is permissible if the officer has reasonable suspicion that a traffic law has been violated (Terry v. Ohio; Whren v. United States).

• Here: Here, the officer observed the driver failing to signal when changing lanes. This constitutes a traffic violation under state law, thereby providing reasonable suspicion. The driver’s argument that the stop was pretextual is unavailing, since Whren allows stops based on observed violations regardless of officer motive.

• Therefore: Therefore, the stop did not violate the Fourth Amendment.

Civil Procedure

Issue: Whether personal jurisdiction exists over the defendant.

• Under: A court may exercise personal jurisdiction consistent with due process if the defendant has minimum contacts with the forum state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice (International Shoe v. Washington).

• Here: Here, the defendant operates a business that regularly ships products into the forum state, actively solicits customers there, and derives significant revenue. These activities constitute purposeful availment, making jurisdiction foreseeable.

• Therefore: Therefore, the court has personal jurisdiction over the defendant.

Putting It All Together: The Legal Brief

In a legal brief, lawyers encounter fact patterns with multiple issues. Each issue should be framed with a “Whether” and analyzed with the Under–Here–Therefore method.

For example, in a negligence case:

• Whether a duty exists

• Whether the duty was breached

• Whether causation is established

• Whether damages are recoverable

Each sub-issue should be treated with its own disciplined mini-analysis.

Final Summary

The disciplined lawyer reasons with clarity, precision, and integrity. By consistently using the framework of Whether – Under – Here – Therefore, you demonstrate mastery not only of the law but of the legal method itself.

• Framing with “Whether” keeps the focus sharp.

• Stating the law using “Under” ensures doctrinal accuracy.

• Applying the law using “Here” demonstrates critical thinking.

• Declaring “therefore” reflects reasoned judgment.

When mastered, this method will shape your craft as a lawyer and counselor.  God willing, it may even preserve the Rule of Law as it reminds the judge that the court's decisions ought to rest on law and reasoning rather than political preference.