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Applications on Evidence Law
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Abstract
Legal analysis is dominated by legal arguments, and the assessment of any legal claim requires the assessment of the strengths and weaknesses of those arguments. The ‘logocratic’ method is a systematic method for assessing the strengths and weaknesses of arguments. More specifically, it is a method designed to help the analyst determine what degree of warrant the premises of an argument provide for its conclusion. Although the method is applicable to any type of argument, this essay focuses on the logocratic framework for assessing the strengths and weaknesses of evidentiary legal arguments, arguments offered in litigation in which evidentiary propositions are proffered to support hypotheses. The focus is on American law, but the logocratic analysis offered here could be adjusted without much trouble to handle arguments about evidence in other systems of litigation. In any legal system that aspires to have a fact-finding process that is sufficiently reliable to meet the requirements of justice, we might fashion an analogue for the Socratic maxim ‘the unexamined life is not worth living’: the unexamined evidentiary argument is not worth believing. The logocratic method seeks to help the evidence analyst pursue that Socratic mission, tailored to the rules and institutions of evidence law.
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Abstract
This book enables teaching of the rules of evidence, with an in-depth understanding achieved by no other casebook. The authors extensively cover rationales for the rules and how they fit into our system of resolving civil disputes as well as handling criminal justice issues in both jury and non-jury contexts. Many books focus on teaching the rules only in a trial practice mode. In this era of fewer trials, the book’s philosophic underpinning is that the best way to teach Evidence is to provide students with a full and in-depth understanding of each rule so as to prepare them to deal with any possible variation on the issues that can arise at the stages of fact-gathering and investigation, or deposition and discovery, or at the stages of trial, or on appeal. The new edition, while as comprehensive and rich in analysis and supporting materials as previous editions, also contains new explanatory material designed to further students’ understanding of the issues. This edition blends the new with the old, representing the latest installment of a casebook with a lineage that dates back to the nineteenth century. The tenth edition retains much of the historical evolution of evidence law from its common law origins through the emergence of the Federal Rules of Evidence and analogous state approaches. In addition, this comprehensive casebook covers new developments in scientific evidence, and applies new insights from fields such as logic and probability.
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Abstract
I begin by commending my friend Gary Lawson for his important treatment of the nature of evidence and proof in his book Evidence of the Law. I write, very much, I think, in the spirit of his book and his own agonophilic (I shall explain this concept) style, to question whether his theory of proof hinders its explanatory power by omitting to recognize virtues of arguments other than the one on which he (and, for that matter, most philosophers--he is in good company) focuses, namely, argumentative proofs that produce true or probabilistically warranted propositions. To make my argument I draw on my own theory of the nature of argument and method of analyzing the virtues and vices of argument. I call this method and its supporting theory the Logocratic Method (“LM”). My task in this Lecture is to present enough of the LM-- including two of its concepts central to my critique, “agonophilia” and “agonophobia”--and enough of a re-presentation of what I understand Gary's argument about the nature of proof to be, to raise my question about the explanatory adequacy of Gary's theory.
Applications on Contract Law
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Abstract
I seek in this chapter to describe and explain a method of teaching and analysis I have developed over several years of teaching the doctrinal course in Contracts at Harvard Law School. Central to that method is the use of tools from logic to help students gain an analytically rigorous, lawyerly mastery of the dynamics of legal rules and the use of those rules to construct legal arguments. In some years I have used the full apparatus of propositional calculus, with the truth-functional operators and propositional constants – as I do in the handout material presented below. In other years I have stuck more closely to natural language (‘and’, ‘not’, ‘or’, etc.). But the basic method is the same either way, and either way it relies significantly on the resources of logical analysis. I have come to call this the Logocratic Method. I coined the term ‘logocratic’ to reflect the central concern of this method with assessing the strength [Greek κρατος – kratos] of premises that are claimed by their proponents to provide justification for a conclusion (such as the conclusion of a judge’s opinion or a lawyer’s brief) by means of argument [Greek λογος – logos]. A vital foundation of the Logocratic Method as I teach it to my Contracts class is a set of tools from basic propositional logic. (Although first-order predicate logic would in some ways be superior, it is significantly harder to teach even the basics of predicate logic to students who have no background in logic.)
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Abstract
I have read and pondered Judge Richard Posner’s judicial opinions and scholarship for many years. Over that time I have been nourished, informed, challenged, provoked, annoyed, angered, impressed, and delighted. I have been delighted, for example, to point out to students that Judge Posner (hereinafter Posner — for brevity and with all due respect), virtually alone at the time among Seventh Circuit judges, spotted a significant logical mistake in the way some of his colleagues had been interpreting the rule for “material alteration” offered in official comment 4 to section 2-207 of the Uniform Commercial Code (U.C.C.). Essentially, they misread a rule in comment 4 that has the form “if P then Q” as having the form “if Q then P.”1 Not only was this error an offense to, say, Quine, Frege, Peirce, and Aristotle, but it also made bad law, as Posner explained. It is hard to get students to pay attention to this kind of detail — especially in a legal culture that has for more than a century been benighted by the dictum that sets in opposition “the life of the law” and “logic.” But my pedagogical efforts to teach the value of logical acuity have been made at least somewhat easier because I can point to an opinion by one of our most prominent judges that illustrates how logic may be used to clarify legal doctrine.
General theory
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Abstract
This is a chapter in a forthcoming book of essays on Legal Reasoning that's in the late stages of publication. The Logocratic Method, a theory I have been developing and teaching over the years, explains the nature of arguments and their principal uses and methods of evaluation, including but not limited to legal arguments. The closely related questions on which I focus in this paper, to which the Logocratic Method offers distinctive answers, are: (i) what exactly are the identity criteria of an argument?; (ii) when, as is typical in legal arguments, an arguer such as a judge or lawyer offers several arguments on the same overall issue, how are we to understand the relations among those sub-arguments?; (iii) what kinds of evaluative criteria are useful for assessing the overall argument and its related components? To illustrate the many "moving parts" of Logocratic analysis of legal argument, the paper uses a deceptively simple (or should that be, "deceptively complex"?) example, familiar to a great many who have had an American Contracts course, Judge Cardozo's opinion for the New York Court of Appeals in Dougherty v Salt, 125 NE 94 (NY 1919). For convenience, I am also circulating that short opinion along with the draft itself. I'm currently working on a book on the Logocratic Method, and any feedback I receive in reaction to this paper will be most helpful and gratefully received.
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Abstract
The Logocratic Method, and the Logocratic theory that underwrites it, provide a philosophical explanation of three purposes or goals that arguers have for their arguments: to make arguments that are internally strong (the premises follow from the conclusions, to a greater or lesser degree—greatest degree in valid deductive arguments), or that are dialectically strong (win in some forum of argument competition, as for example in litigation contests of plaintiffs or prosecutors on the one hand, and defendants, on the other), or that are rhetorically strong (effective at persuading a targeted audience). This article presents the basic terms and methods of Logocratic analysis and then uses a case study to illustrate the Logocratic explanation of arguments. Highlights of this explanation are: the use of a (non-moral) virtue (and vice) framework to explicate the three strengths and weaknesses of arguments that are of greatest interest to arguers in many contexts (including but not limited to the context of legal argument), the Logocratic explication of the structure of abduction generally and of legal abduction specifically, the concept of a system of arguments, and the concept of the dynamic interactive virtue (and vice) of arguments—a property of systems of arguments in which the system of arguments as a whole (for example, the set of several arguments typically offered by a plaintiff or by a defendant) is as virtuous (or vicious) as are the component arguments that comprise the system. This is especially important since, according to Logocratic theory (and as illustrated in detail in this paper), some arguments, such as abduction and analogical argument, are themselves comprised of different logical forms (for example, abduction always plays a role within analogical argument, and either deduction or defeasible modus ponens, always plays a role within legal abduction).
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Abstract
This Essay focuses on one specific jurisprudential idea that Leibniz developed during and advanced in the Specimen and in the Dissertation, namely the importance of logic for modeling, explaining, discerning, and understanding law and legal process. It comments on the way in which the young Leibniz advanced creative ideas about the relation of logic and law that remain both fertile and contentious today, especially in Anglo-American jurisprudence. It concludes with an examination, sometimes critical, of some specific “perplexing” paradoxes in and related to law that Leibniz discussed, in his lifelong effort to bring “the light of reason” to law through the use of logic (and other philosophical tools).