This is a job talk delivered today at a law school. The slides appear below. Here, in summary, is the substance of my talk:
The title of my talk is “Case-based Reasoning: Theory, pedagogy, and practice”. This presentation relates to a project I am pursuing to build on my dissertation and to extend work I’ve done with Dr. Lee-Ann Breuch on how students connect sources from their research to their present writing objectives.
This talk has two parts, a theoretical one and an empirical one. In the theoretical part:
- I briefly discuss two norms of legal argumentation which live in tension with each other.
- I describe one of them as “domain rationalism” and argue that it calls for legal argument to express all premises, inferences, and conclusions.
- I claim, with good reason I think, that we teach legal writing that way.
- I then describe case-based reasoning, which many lawyers think of as reasoning by analogy from precedents—analogizing or disanalogizing cases.
- I point up a theoretical problem with CBR—that is, the problem of deciding what makes two cases relevantly similar or dissimilar to each other, which is the basis upon which we apply or distinguish a precedent.
- I suggest that the way forward is with policy-based CBR, as proposed by Posner (and others).
- I conclude that law students at least should make their inferences grounded in CBR explicit in their legal writing. I leave open the question of whether attorneys practicing before judges should be expected to use explicit CBR.
In the empirical part, I explore two hypotheses I have, by giving examples from a pilot study and briefly describing my plans for a more systematic empirical study of them:
- The first hypothesis is that some legal writing instructors are teaching an explicit form of policy-based CBR, but most do not.
- The second is that lawyers practicing before the federal courts are generally NOT employing explicit policy-based CBR.
This empirical study is important because it will help us understand the extent to which policy-based CBR is being made explicit in the classroom, which I argue is a good thing; and it helps us to understand how lawyer’s practices differ from what we are teaching our students, which is a critical thing.