RSA 2016–La même chose: Lawyers’ use of exemplary reasoning in persuasive writing

My proposal to speak at the Rhetoric Society of America conference here in Atlanta in May 2016 has been accepted. Here is the abstract:

Plus ça change, plus c’est la même chose. The more things change, the more the stay the same. The French proverb counsels one not to expect too much from change. But what does it mean to s(t)ay “the same”? The question is of crucial importance in the law, where the Principle of Justice demands that a court should treat a situation today “the same” way that previous courts have treated “the same” situation in the past. Perelman and Olbrechts-Tyteca, Scott Brewer, Lloyd Weinreb, Richard Posner, and Macagno and Walton have discussed the theory of arguing or reasoning from example in the law, sometimes using judges’ opinions as case studies; but to date, no one has empirically examined lawyers’ everyday uses of exemplary reasoning. In this presentation, I connect argumentation theory with these everyday practices by describing preliminary findings from a pilot study of persuasive briefs filed by lawyers in court proceedings.

A lawyer cites a precedent case in an argumentative brief seeking either to “analogize” the previous case—urging the court today to follow the precedent—or to “disanalogize” it—urging the court to distinguish the precedent from the case today and to go another way. In theory, the lawyer should highlight for the judge the relevant (dis)similarities between today’s case and a precedent to justify the court in deciding whether to follow or distinguish the precedent.

I collected a random sample of more than 200 lawyers’ persuasive briefs relating to motions in federal copyright cases, along with the judges’ opinions adjudicating the same motions. I will present the results of a pilot examination of a subset of these texts, seeking to answer the question: “Do lawyers identify relevant (dis)similarities between cases at bar and cited precedents when urging courts to (dis)analogize, and if so, how?” This presentation will focus on the route from argumentation theory through development of the research question to empirical study design.

References

Brewer, Scott. “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy.” Harvard Law Review 109.5 (1996): 923–1028. Print.

Macagno, Fabrizio, and Douglas Walton. “Argument from Analogy in Law, the Classical Tradition, and Recent Theories.” Philosophy & Rhetoric 42.2 (2009): 154–182. Print.

Perelman, Chaim, and Lucie Olbrechts-Tyteca. The New Rhetoric: A Treatise on Argumentation. University of Notre Dame Press, 1969. Print.

Posner, Richard A. “Reasoning by Analogy.” Cornell Law Review 91.3 (2006): 761–774. Print.

Weinreb, Lloyd L. Legal Reason: The Use of Analogy in Legal Argument. Cambridge: Cambridge University Press, 2005. Print.