Precedent as Rational Persuasion

The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding law and the society it shapes. An inquiry that explores the very foundations of all legal reasoning leads to a broad, important question: How do lawyers and judges use cited cases in their legal arguments? It turns out there is practically no empirical research to suggest the answer. As the first step in a comprehensive empirical effort to answer this question, this article performs a ground-breaking analysis of a carefully constructed corpus of judicial opinions and the advocates’ briefs that gave rise to them. It tells us not just that these textual artifacts cited court opinions, but how they used the opinions in their reasoning. The article then reveals whether judges and advocates placed different values on different ways of using cited cases. These legal authors used them to make assertions about legal rules in their arguments about twice as often as they used them as legal analogies and about four times as often as they used them to make policy arguments. Perhaps unsurprisingly, the practices of judges differed significantly from those of advocates. But so, too, did those of the prevailing advocates and their less fortunate opponents. On functional grounds, therefore, this article empirically supports the claim that there is a hierarchy of rational legal argumentative appeals, and that there is a common look to the ‘losing brief.’ This special convergence between theory and function can transform ongoing debates across legal scholarship on the value of drawing on precedent as a tool for rational persuasion

A method for creating digital signature policies.

Increased political pressures towards a more efficient public sector have resulted in the increased proliferation of electronic documents and associated technologies such as Digital Signatures. Whilst Digital Signatures provide electronic document security functions, they do not confer legal meaning of a signature which captures the conditions under which a signature can be deemed to be legally valid. Whilst in the paper-world this information is often communicated implicitly, verbally or through notes within the document itself, in the electronic world a technological tool is required to communicate this meaning; one such technological aid is the Digital Signature Policy. In a transaction where the legality of a signature must be established, a Digital Signature Policy can confer the necessary contextual information that is required to make such a judgment. The Digital Signature Policy captures information such as the terms to which a signatory wishes to bind himself, the actual legal clauses and acts being invoked by the process of signing, the conditions under which a signatory's signature is deemed legally valid and other such information. As this is a relatively new technology, little literature exists on this topic. This research was conducted in an Action Research collaboration with a Spanish Public Sector organisation that sought to introduce Digital Signature Policy technology; their specific research problem was that the production of Digital Signature Policies was time consuming, resource intensive, arduous and suffered from lack of quality. The research therefore sought to develop a new and improved method for creating Digital Signature Policies. The researcher collaborated with the problem owner, as is typical of Participative Action Research. The research resulted in the development of a number of Information Systems artefacts, the development of a method for creating Digital Signature Policies and finally led to a stage where the problem owner could successfully develop the research further without the researcher's further input