Using Toulmin Argumentation to develop an Online Dispute Resolution Environment

Our goal is to model reasoning in discretionary legal domains. To do so, we use Knowledge Discovery from Database Techniques. However there are obstacles to this approach, including difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. Toulmin’s treatise on the uses of argument can be gainfully employed to construct legal decision support systems in discretionary domains. We show how we can use Toulmin’s approach to build such systems with examples taken from the domains of eligibility for legal aid, evaluation of eyewitness evidence, family law, refugee law and sentencing. We then show how Toulmin Argument Structures can be developed to construct an Online Dispute Resolution environment that allows for determining BATNAs, exchanging opinions and providing advice about tradeoffs

Constitutional Evidence Law

This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of the three facets of adjudicative factfinding-evidence, procedure, and rules of decision- only two are constitutionalized. Constitutional law regulates procedural and decisional rules, but not whether the evidence that factfinders use is adequate. Constitutional law regulates procedure through a set of rules that determine a person\u27s power to control the trial by adducing evidence in support of her case and by examining the evidence of her adversary. Constitutional law regulates decisionmaking by setting probability requirements for findings of fact-standards of proof-and by allocating the burdens of proof among the prosecution, plaintiffs, and defendants. Constitutional law, however, does not control adequacy of the evidence upon which factfinders determine the probability of contested allegations and apply the burdens of proof. This is so because the Supreme Court interprets the Due Process Clause, as related to evidence, very narrowly. Under this interpretation, any evidence is constitutionally adequate when its use is not fundamentally unfair. Moreover, fundamental unfairness occurs only in extreme cases such as those which exhibit a serious prosecutorial misuse of the trial process. Examples include when the government knowingly procures the defendant\u27s conviction by false evidence or by evidence from which factfinders can draw no rational inferences. Anything less is not fundamentally unfair. As a result, virtually any rule that controls evidential admissibility and identifies evidence that does or does not require corroboration is constitutional. The fundamental unfairness criterion practically exempts evidential adequacy from constitutional scrutiny

Constitutional Evidence Law

This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of the three facets of adjudicative factfinding-evidence, procedure, and rules of decision- only two are constitutionalized. Constitutional law regulates procedural and decisional rules, but not whether the evidence that factfinders use is adequate. Constitutional law regulates procedure through a set of rules that determine a person\u27s power to control the trial by adducing evidence in support of her case and by examining the evidence of her adversary. Constitutional law regulates decisionmaking by setting probability requirements for findings of fact-standards of proof-and by allocating the burdens of proof among the prosecution, plaintiffs, and defendants. Constitutional law, however, does not control adequacy of the evidence upon which factfinders determine the probability of contested allegations and apply the burdens of proof. This is so because the Supreme Court interprets the Due Process Clause, as related to evidence, very narrowly. Under this interpretation, any evidence is constitutionally adequate when its use is not fundamentally unfair. Moreover, fundamental unfairness occurs only in extreme cases such as those which exhibit a serious prosecutorial misuse of the trial process. Examples include when the government knowingly procures the defendant\u27s conviction by false evidence or by evidence from which factfinders can draw no rational inferences. Anything less is not fundamentally unfair. As a result, virtually any rule that controls evidential admissibility and identifies evidence that does or does not require corroboration is constitutional. The fundamental unfairness criterion practically exempts evidential adequacy from constitutional scrutiny

More Restrictive Alternatives

Courts often fault governments for pursuing their regulatory interests in an unnecessarily restrictive manner. Indeed, and as is well appreciated by courts, litigants, and scholars alike, the availability of a “less restrictive alternative” will often spell the doom of a constitutionally suspect law. Sometimes, however, this logic gets flipped on its head, with courts faulting governments for failing to utilize alternatives that are more restrictive rather than less. This Article collects examples of what it calls “more restrictive means” analysis in U.S. constitutional law and attempts to make sense of its analytical underpinnings. Specifically, the Article suggests that courts invoke “more restrictive alternatives” for at least one of two purposes: (a) to undercut the government’s claim that a regulatory interest requires it to discriminate in a constitutionally problematic manner (highlighting what is described as an “equality-based” defect in the law under review); and/or (b) to cast doubt on the government’s commitment to a claimed regulatory interest (highlighting what is described as a “sincerity-based” defect in the law under review). The Article also analyzes the various types of defenses the government might raise on behalf of its decision to regulate less restrictively, such as the claim that a more restrictive alternative would fail to produce additional regulatory benefits, the claim that it would increase administrative costs, and the claim that it would undermine important “lenience-related” interests that the less restrictive law is better capable of promoting. Additionally, the Article considers the relationship between the constitutional import of a more restrictive alternative and the constitutional validity of the alternative itself, suggesting somewhat counterintuitively that more restrictive alternatives of questionable constitutionality can sometimes support invalidation of the laws with which they are compared. The upshot of this analysis is a novel and systematic framework for thinking about more restrictive alternatives and their place within U.S. constitutional law

The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference. When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the “short time span” has been elastically extended over seven years. Per the same-actor doctrine, when a supervisor first behaves in a way that benefits an employee and then subsequently takes adverse action against that employee, many federal courts conclude that the supervisor’s adverse treatment is presumptively nondiscriminatory, adopting the strong inference that the supervisor’s negative employment decision was not motivated by bias. This Article concludes that this doctrine should be curtailed. Given the dearth of textual support and legislative history supporting the creation of the same-actor doctrine, the striking growth rate of this unjust doctrine in circuits that apply the strong-inference standard, and the psychological science amassed that powerfully reveals the errors laden within the doctrine, federal courts should reevaluate their existing jurisprudence on the same-actor inference. Ultimately, this Article recommends that federal courts resolve the existing circuit split by adopting the approach of the U.S. Court of Appeals for the Seventh Circuit. Fundamentally, same-actor evidence should be one evidentiary datum for the ultimate trier of fact to weigh along with all other possible evidence of discrimination

The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference. When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the “short time span” has been elastically extended over seven years. Per the same-actor doctrine, when a supervisor first behaves in a way that benefits an employee and then subsequently takes adverse action against that employee, many federal courts conclude that the supervisor’s adverse treatment is presumptively nondiscriminatory, adopting the strong inference that the supervisor’s negative employment decision was not motivated by bias. This Article concludes that this doctrine should be curtailed. Given the dearth of textual support and legislative history supporting the creation of the same-actor doctrine, the striking growth rate of this unjust doctrine in circuits that apply the strong-inference standard, and the psychological science amassed that powerfully reveals the errors laden within the doctrine, federal courts should reevaluate their existing jurisprudence on the same-actor inference. Ultimately, this Article recommends that federal courts resolve the existing circuit split by adopting the approach of the U.S. Court of Appeals for the Seventh Circuit. Fundamentally, same-actor evidence should be one evidentiary datum for the ultimate trier of fact to weigh along with all other possible evidence of discrimination

Dichotomies and oppositions in legal argumentation

Abstract. In this paper we use a series of examples to show how oppositions and dichotomies are fundamental in legal argumentation, and vitally important to be aware of, because of their twofold nature. On the one hand, they are argument structures underlying various kinds of rational argumentation commonly used in law as a means of getting to the truth in a conflict of opinion under critical discussion by two opposing sides before a trier of fact. On the other hand, they are argument structures underling moves made in strategic advocacy by both sides that function as platforms for different kinds of questionable argumentation tactics and moves that are in some instances tricky and deceptive. In this paper we analyze examples of legal argumentation based on reasoning from dichotomies and oppositions. We show how this type of argumentation is especially visible in cross-examination and voir dire. It is shown in the paper how reasoning from oppositions is a powerful argumentative instrument in law that can be used both to support an assertion and back a decision. Opposition and dichotomy are fundamental logical notions in logic, and in argumentation studies generally. In formal logic, there are two concepts of opposition. According to the strong sense o

An explicit model for learning to structure and analyze decisions by judges

Legal practitioners and legal scientists need to have knowledge of the general rules that apply in the legal system. This involves both knowledge of the legislation and knowledge of the decisions by judges that function as general rules of law. Law students preparing themselves for the legal profession need to acquire these kinds of knowledge. A student has to have knowledge about where to look for decisions, understand the structure of decisions and learn to determine what makes a decision relevant to the body of applicable rules in the legal system. Legal education primarily aims at acquiring insight in the legal sources, their history and background. This basic knowledge is of great importance; legal problem solving is hardly possible without an understanding of the legal knowledge. To illustrate the use of this knowledge in practice, teachers work through decisions as examples. However, it is difficult, if not impossible, to learn by explanation or by imitation alone. A more effective way to obtain expertise is by actually performing the task, i.e. students should do the exercises, while the teacher provides feedback on their solutions. For effective learning, also the solution process should be monitored and provided with feedback. Furthermore it is desirable for students to be able to ask for help at any time during the process. They should also be able to practice over and over again. An ideal situation would have a teacher available for every student, monitoring the student while practicing and providing support where and whenever necessary. However, this being not practically feasible, the second best option is to offer the student electronic support. CASE (Case Analysis and Structuring Environment) is an environment where a law student can practice with finding decisions, with structuring its text and with analysing the decision in order to be able to determine in what way it adds to the body of applicable rules in the legal system. CASE is developed using a principled and structured design approach. A short description of this approach is followed by an analysis of the learning task, the difficulties law students experience and the remedies proposed on the basis of both the task analysis and the stated difficulties. This is followed by a description of architecture, functionality, platform and implementation of CASE and a description of a session with CASE and future work

Examples of long-term and short-term decision-making in the UK, Delaware and Germany – gap-filling exercise in the context of the shareholder v. stakeholder debate and share ownership structure of the company

This paper explores the extent to which the law in the UK, Delaware and Germany imposes an obligation on directors of solvent public companies to take into account the long-term consequences of their decisions while establishing the content and scope of long-termism in these three legal systems. This research draws on the academic literature and performs a gap-filling exercise by identifying examples of long-term decision-making in these jurisdictions, as well as examples of decision-making and conduct that is not long-term in nature. In the gap-filling exercise, case studies are presented in the context of (i) the contemporary shareholder v. stakeholder debate in corporate governance scholarship and (ii) the relevance of the share ownership structure of the company. These two important debates are used as variables to cast light on the ambit of the notion of long-termism, and the structural differences and similarities between the corporate governance systems and concepts of long-termism in the UK, Delaware and Germany