‘Irreparable harm’ and legal arguments by analogy and example

29 Nov

I’m excited! My proposal for the 8th ISSA Conference on Argumentation in Amsterdam in July 2014 has been accepted. Of course, I still have plenty of work to do to get ready! Here’s my abstract:

This paper presents the results of a pilot empirical study of written legal arguments and oral reports of authors’ cognition to explore the following research questions: Do American lawyers perceive differences between arguments by analogy and arguments by example, and if so, how are those differences represented in their argumentative writing? Scott Brewer (1996), Lloyd Wienreb (2005; 2007), and Richard Posner (2006) engaged in a lively debate regarding exemplary and analogical reasoning in court opinions, but they did not consider actual arguments before trial or appellate court judges or the cognition of attorneys or judges arising around them. Macagno and Walton (2009), following Perelman and Olbrechts-Tyteca (1969) and harkening to the tradition originating with Aristotle, discussed the distinction between legal reasoning by example and by analogy. But their discussion was largely theoretical.

I will present results of a systematic textual analysis of a small random sample of memoranda in support of and in opposition to motions for preliminary injunction before U.S. trial judges. Because of the particular nature of preliminary injunction motions, which seek to prevent “irreparable harm” to the moving parties, memoranda relating to them often represent instances both of exemplary and analogical argument. I will characterize the cognition of authors of some of these memoranda based upon discourse-based interviews of them. Discourse-based interviews (Odell, Goswami & Herrington, 1983) are an adaptation of the think-aloud protocols developed by Herbert Simon and others and are common in studies in cognitive science (Ericsson & Simon, 1980). The results offer insight into whether the argument by example/analogy distinction is tenable in legal reasoning. These results should be of interest to argumentation theorists, legal philosophers, and teachers of legal reasoning and writing.

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