Aristotle’s Tried and True Recipe for Argument Casserole

I thoroughly enjoyed John Schunk’s article— “What Can Legal Writing Students Learn from Watching Emeril Live?”—in the Winter 2006 issue. We are big Emeril fans in our family, and we too have heard him distinguish the art of baking casseroles from the art of baking cakes. Baking a casserole is more art than science, because although there are basic ingredients, a creative cook can vary the recipe to please a variety of palettes. Baking a cake, on the other hand, is more science than art, because if the cook eliminates a necessary egg or adds too much baking powder, the cake could fail. That legal writing is a casserole and not cake is an apt metaphor. In his article, Professor Schunk has captured the palpable tension our first-year students feel between wanting to be creative, and at the same time, wanting to do it the “right” way. As Schunk notes, in their quest for concrete knowledge, first-year law students often latch onto the idea that legal writing is a cake, and all they need to do is memorize and follow the recipe

A Labelling Framework for Probabilistic Argumentation

The combination of argumentation and probability paves the way to new accounts of qualitative and quantitative uncertainty, thereby offering new theoretical and applicative opportunities. Due to a variety of interests, probabilistic argumentation is approached in the literature with different frameworks, pertaining to structured and abstract argumentation, and with respect to diverse types of uncertainty, in particular the uncertainty on the credibility of the premises, the uncertainty about which arguments to consider, and the uncertainty on the acceptance status of arguments or statements. Towards a general framework for probabilistic argumentation, we investigate a labelling-oriented framework encompassing a basic setting for rule-based argumentation and its (semi-) abstract account, along with diverse types of uncertainty. Our framework provides a systematic treatment of various kinds of uncertainty and of their relationships and allows us to back or question assertions from the literature

A Call To Combine Rhetorical Theory and Practice in the Legal Writing Classroom

The theory and practice of law have been separated in legal education to their detriment since the turn of the twentieth century. As history teaches us and even the 2007 Carnegie Report perhaps suggests, teaching practice without theory is as inadequate as teaching theory without practice. Just as law students should learn how to draft a simple contract from taking Contracts, they should learn the theory of persuasion from taking a legal writing course. In an economy where law apprenticeship has reverted from employer to educator, legal writing courses should do more than teach analysis, conventional documents, and the social context in which lawyers write. The legal writing professor\u27s task is to impart to her students the intellectual ballast necessary to navigate complex analytical challenges in the workplace. By combining rhetorical theory and practice in the legal writing classroom, the professor can pique students\u27 interest, hasten their learning, and help them develop transferable skills better than teaching by imitation alone. In addition, teaching the rhetorical nature of law in a legal writing course helps students debunk sooner the myth of black letter law in their doctrinal courses. Finally, as the Carnegie Report indicates, a more holistic approach to teaching can best blend the analytical and practical habits of mind that professional practice demands.... This Article begins with a brief history of the separation of theory and practice in the law classroom and the impact that it has had on the quality and reputation of writing as its own subject. The Article argues that despite a wave of pedagogical advances, legal writing as its own subject has ample room to grow. For legal writing courses to achieve intellectual maturity, they must incorporate rhetorical theory. To ignore it is to confirm Plato\u27s suspicion that rhetoric is a discipline without a subject matter and to enable the insidious undervaluing of our profession. As detailed below, there are several advantages to teaching legal writing as rhetoric. Although not the focus of this Article, a corollary advantage may be to help legal writing faculty achieve academic equality, which benefits teacher and student alike. For a variety of reasons, this Article concludes that legal writing professors are responsible for teaching both practical skills as well as the theories that inform them

Law School Education and Liberal CLE

In the fall of 2002, several organizations in the fields of law and legal education jointly sponsored the Second Indiana Conclave on Legal Education.1 The purpose of the meeting was to assess the status of legal education in the State of Indiana, both in law school and beyond; identify goals that could guide the improvement of legal education; and map out means to achieve those goals. Within this general framework, the Conclave emphasized issues relating to core values of the profession; more particularly, instilling and supporting them in the face of great changes in the profession and society. The Conclave sought to promote not just discussion but action, and it was organized to generate concrete proposals. One set of priority recommendations, of course, focused on ways to instill professional values in law students and new lawyers. Several other recommendations—not priorities, but important nonetheless—dealt with education after law school, including programs of continuing legal education. One of these recommendations urged a broadening of “what qualifies for continuing legal education credit to include enrichment activities, personal development courses, and public interest topics.

Parol Evidence Rules and the Mechanics of Choice

Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumerside communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important

Civil Procedure as a Critical Discussion

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and a concluding phase. Those phases are the umbrella under which discrete argumentation phases occur at points we call stases. Whenever litigants seek a ruling or judgment, they reach a stasis—a stopping or standing point for arguing procedural points of disagreement. During these stases, the parties make arguments that fall into predictable “commonplace” argument types. Taken together, these stock argument types form a taxonomy of arguments for all civil cases. Our claim that the Federal Rules of Civil Procedure function as a system for argumentation is novel, as is our claim that civil cases breed a taxonomy of argument types. These claims also mark the beginning of a broader project. Starting here with the Federal Rules of Civil Procedure, we embark on a journey that we expect to follow for several years (and which we hope other scholars will join), exploring our model’s application across dispute resolution systems and using it to make normative claims about those systems. From a birds-eye view, this Article also represents a short modern trek in a much longer journey begun by advocates in city states in and near Greece nearly 2500 years ago

The criminalization of lying: Under what circumstances, if any, should lies be made criminal?

This is the post-print version of the Article. The official published version can be accessed from the link - Copyright @ 2011 University of Illinois PressThis Article argues that lying should be a crime. In doing so, we propose the creation of a wholly new category of crime, which we term “egregious lying causing serious harm.” The Article has two broad objectives: the first is to make the case why such a crime should even exist, and the second is to flesh out how this crime might be constructed. The main contribution of the Article lies in the radical nature of its stated aim: the outright criminalization of certain kinds of lies. To our knowledge, such a proposal has not previously been made. The analysis also contributes to a broader discussion regarding the issue of overcriminalization. We conclude that while criminalizing certain forms of lies might at first blush appear fanciful, the case for doing so is not only plausible, it is indeed necessary

Intent to Contract

There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties\u27 intent to be legally bound, while section 21 of the Second Restatement of Contracts states that [n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract. There are also differences within U.S. law on the issue. While section 21 describes courts\u27 approach to most contracts, the parties\u27 intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social arrangements, reporters’ promises of confidentiality to sources, and gratuitous promises. This Article develops an analytic framework for evaluating these rules and examines their relationship to the broader principles that animate contract law. Rules that condition contractual liability on proof of contractual intent must include rules for interpreting that intent. Those interpretive rules will include both interpretive defaults and rules for what it takes to opt-out of the default. By adjusting these default and opt-out rules, the law can achieve different balances between the duty-imposing and power-conferring functions of contract law, or among the various reasons for enforcement. This is demonstrated by an analysis of the rules for gratuitous promises, preliminary agreements, spousal agreements and reporters\u27 confidentiality promises. The results of that analysis include a new argument for the Model Written Obligations Act; a critique of Alan Schwartz and Robert Scott\u27s proposal preliminary agreements and a recommended alternative to it; and recommended changes to the rules for agreements between spouses. Attention to intent to contract requirements also indicates an overlooked aspect of how the enforcement of contracts affects extralegal norms and relationships of trust. Interpretive rules that require parties who want, or who do not want, legal liability expressly to say so are particularly likely to interfere with or erode extralegal forms trust that otherwise create value in transactions

Dishonest Ethical Advocacy?: False Defenses in Criminal Court

This Note examines this dilemma and recent judicial approaches to it. Judges disagree about how guilty criminal defendants should be permitted to mount defenses at trial. Some have forbidden defense counsel from knowingly advancing any false exculpatory proposition. Others have permitted guilty defense attorneys to present sincere or truthful testimony in order to bolster a falsehood. And still others have signaled more general comfort with the idea that an attorney aggressively can pursue an acquittal on behalf of a guilty client. This Note seeks to resolve this issue by parsing the range of false defense tactics available to attorneys and evaluating the propriety of each under the Model Rules of Professional Conduct. This Note reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; it defines and categorizes specific false defense tactics; and it offers practical, context-specific recommendations to courts and attorneys evaluating knowingly false defenses as they occur in the real world