10-12

mins?

My name. Preso 3tle.

The QR code and web address here will take you to a blog post with these slides and
the notes on them and with the handout.

READ. Note later terminological discussion.

Lets consider a simplied example [NEXT]

Photo credit: smart electric drive, 2012 GriinBlog, CC BY-NC-SA 2.0, hXps://
ic.kr/p/cniKFm

Imagine there is an ordinance Anyone who operates a vehicle in the park is guilty
of a misdemeanor.

Imagine that the ordinance passed in response to people driving automobiles over
the curb, across sidewalks, and onto park lawns during picnics, par3es, and events.

This seems to be a very simple legal rule to apply, but almost certainly, there will be
dicul3es. One important ques3on is [NEXT]

Graphic credits: Old car, 2008 Bogdan Suditu, CC BY 2.0. hXps://ic.kr/p/

4C84Ra ; My old bike, 2008 Keith Barlow, CC BY-NC-SA 2.0, hXps://ic.kr/p/
5swrWb ; Classic Bri3sh Motorcycles Ariel, 2015 Paul Townsend, CC BY-NC-SA
2.0, hXps://ic.kr/p/rcuUej ; motor bike, 2014 krismadden, CC BY-NC-SA 2.0,
hXps://ic.kr/p/voVS5J (Example adapted from H.L.A. Hart, pp. 126-27. )
Case 1: We have the paradigma3c vehicle, the thing everyone had in mind when
the law passed. No one even asks whether the rule applies.
Case 2: Court says no. It men3ons that it is Not self-propelled though some
dic3onaries include unpropelled objects in the vehicle category.
Case 3: Motorcycle? Yes. Court only says, Its more like a car than like a bicycle.
It doesnt say how.
The court has never adopted a rule about what is and is not a vehicle, but even if it
did, it could not necessarily foresee how it would apply in future. (And to the
extent that it governs cases unlike those currently before the court, the rule would
be dictumthe legal way of saying its not binding on future courts.)
So now we are confronted with Case 4: A bicycle with a motor, but where the
motor was not running when the cita3on was issued. [CLICK NOW] In other words,
the rider was pedalling it. Is this more like the bicycle or the car or motorcycle, and
on what basis might we make the determina3on? What similari3es are there
between the bicycle and the objects in the previous cases? Which similari3es are
relevant to this decision? [NEXT]

Why is the ques3on of how exemplary argument works important? Well [NEXT]

(POT said one dierence between analogy and example is that analogies span two
spheres. For example: A woman needs a man like a sh needs a bicycle. This
analogy compares things in widely divergent spheres. POT said that if one is applying
the same legal rule to two situa3ons, one is using exemplary reasoning. Because
lawyers and legal theorists say analogizing, Ill probably slip and call it analogy here
some3mes, too.)

 [READ SLIDE FIRST]

Making a judge lay out an argument (whether it accurately represents her
reasoning or no) makes the law suscep3ble to review on appeal, to public debate,
and to revision by statute or other means.
So the ques3on then is [NEXT]

 Dr. ScoX Brewer, professor of law and philosophy at Harvard. [READ] Given the
exis3ng cases, what rule might best explain them? In the vehicle example, our
proponent (the prosecutor) might abduce from the previous cases that something
on or in which a human can ride is a vehicle if it is capable of self-propulsion. The
proponent/prosecutor then applies the rule. Bicycles with motors are capable of
self-propulsion. Therefore, bicycles with motors are vehicles.
Of course, this shivs the ques3on to abduc3on and how it works. Brewer
essen3ally dodges this ques3on, spending very liXle 3me explaining what makes
an abduc3on reasonable, other than to say that the proponent must oer a
ra3onale for it. Brewer explains argument from analogy by doing away with it,
replacing it with an unexplained abduc3on and a trivial deduc3on.
Weinreb, also a Harvard law professor, takes the intui3ve approach. [READ]
Unfortunately, this leaves exemplary or analogical reasoning without much of a
model for cri3cal evalua3on or for teaching it. We need some way of formalizing
this type of argument if law is to sa3sfy its own norma3ve commitments. [NEXT]

 Dr. Doug Walton, at the University of Windsor, Canada. (Dis3nguished Research

Fellow of the Centre for Research in Reasoning, Argumenta3on and Rhetoric
(CRRAR) )
[READ]
(Note that Walton et al. describe other possibili3es for what lawyers call analogical
reasoning, including reasoning from classica3on and precedent. They are all
closely connected to this schema, however.)
This is my adapta3on of their approach. So lets see what it looks like [NEXT]

This is not Waltons schema verba3m, but my adapta3on of it.

This will sound preXy abstract, but bear with me just a sec
[Read slide fairly quickly]
Note that Proposi3on A for my purposes is some legal conclusion. For example,
that the bicycle with a motor is a vehicle. In fact, lets apply the schema to that
example to make it more concrete. [NEXT]

[READ]

But I noted a moment ago that Waltons schema is defeasible, and that certain
cri3cal ques3ons can defeat the conclusion. [NEXT]

10

 The rst three ques3ons are really about whether the proponent has correctly
understood the precedents, the underlying policies, and the facts of this case.
Here, the opponent of the argument might just contradict some of what the
proponent has said.
(CQ1: Is it true that automobiles, motorcycles, and bicycles+motors are similar in
the way described? Has the lawyer advancing the argument claimed a similarity
that does not exist in the cases? CQ2: Are the similari3es described relevant for
assigning the category? What legal policy surrounding the assignment of the
vehicle category makes these similari3es relevant? Were lawmakers concerned
about dangers posed by vehicle speed? Damage caused to lawns by vehicle
weight? Risk of accidents involving pedestrians? Noise from engines? CQ3: Is it
true that the earlier court decided an automobile and a motorcycle were vehicles?
Has the proponent of the argument misread the earlier cases? (Not likely in this
example, but not unusual in more complicated situa3ons.)
CQ4 is interes3ng because it asks if there are dissimilari3es between the earlier
cases and this one that might be relevant for A? For example, when the bicycle
+motor is pedaled with its engine o, is it not more like a bicycle than a
motorcycle?
CQ5: Has the court previously decided some other case the other way despite
similari3es being present? For example, maybe a court concluded that a bicycle
+motor with was NOT a vehicle.
Taken together the schema and CQs in Waltons model permit [NEXT]

11

 [READ]
(Note that Brewer would probably be lev uncomfortable by my elision of ra3onal
with relevance.)
Given the model, though I wondered [NEXT]

12

The big ques3on here is whether lawyers do this generally. Naturally, I had to narrow
the scope to make this problem tractable for research. For reasons I can explain
during Q&A, I chose to examine:
Trial court briefs rather than appellate briefs. (Avoids the selec3on problem noted
by Posner and others. Only hard cases get to the appeals courts.)
Briefs rela3ng to one type of legal issue, copyright summary judgment mo3ons. (I
wanted to use one type of law, because I gured a paXern might be apparent
there even if it were not shared with prac33oners in another area. I know
copyright law, so Im more comfortable with it. And Copyright and summary
judgment raise ques3ons of hard-to-apply standards rather than having simple
rules.)
All reported cases from a par3cular 3me period (July 2010 to June 2015) to avoid
the necessity of random sampling.
The expected result is [NEXT]

13

 Organizing them into corpora allows me to do quan3ta3ve, quasi-content-analysis.

Gathering court opinions with their related briefs allows me to do case-study like
examina3ons of individual decisions.
[READ slide]
So, lets look at what Ive found so far [NEXT]
(So far, my study does not necessarily include all the briefs for all these opinions.
The cost is too great to download them from the Federal Courts PACER system.
Outliers include cases where the lawyers have led dozens of briefs leading up to
the courts opinion. I dont want the data skewed by the wri3ng of any par3cular
law rms. Going forward, I may limit each opinion to two briefs per side.)

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La mme chose: Lawyers use of exemplary reasoning argument in persuasive writing
Rhetoric Society of America conference, Sunday, May 29, 2016, Atlanta GA
Presentation and this handout available at http://tiny.cc/RSA2016 (case sensitive URL)

Exemplary argument schema (EAS) & critical

Summary of coding guide for pilot study
questions
Unit selection
Schema
Identify as a unit any reference (citation) to a case
Major Premise: Case 1 is similar to Case 2, in that
from the text in reference to an issue the court
both have features f1fn.
must determine related to copyright or summary
Relevant Similarity Premise: Features f1fn are
judgment. (Some defined exceptions in full guide.)
relevant to proposition A.
Coding: For each case reference
Minor Premise: Proposition A applies to Case 1.
Y/N: Are facts from the cited case described? In
Conclusion: Proposition A applies to Case 2.
text or citation? (Major premise.)
Critical questions
Y/N: Are facts from current case compared/
CQ1CQ3: Are the premises true?
contrasted with cited case? (Major premise.)
CQ4: Are there dissimilarities between C1 and C2
Y/N: Is any rationale for comparing/ contrasting
relevant to A?
these two cases offered? (RS premise.)
CQ5: Is there some other case C3 that is also
Y/N: Is the outcome in the underlying case
similar to C1 (in that both have f1fn) except that A
expressed or implied? (Minor premise.)
is not applied in C3?
(Other items coded described in the full guide.)
Basic statistics

4 court opinions & 15 briefs coded
77 caserefs (x%) stated or implied outcome in
precedent case. (Minor premise.)
700 case references (units) coded
69 exhibited all three of the preceding features.
Units per textMean: 37, median 27, sdev 27.5
(Expressing or implying 2 of 3 premises.) 40, or
Summaries
58% of those, were from 3 briefs in one case
0 caserefs offered an express claim of
(B037, B038, and B039).
relevance/ rationale. (RS premise, but see
619 caserefs exhibited none of the three
questions below.)
preceding features (neither expressing nor
76 caserefs (x%) stated or implied facts from
implying any of the premises).
the cited case. (Major premise.)
73 caserefs (x%) stated or implied comparison
of facts with current case. (Major premise.)
EXAMPLES
Example from judges/lawyers text
Larson discussion
1. Uses of the copyrighted work that stay within the
1-2. I refer to this type as a borrowed rule after
scope of a nonexclusive license are immunized from
Murray and DeSanctis. The authors probably need a
infringement suits. John G. Danielson, Inc. v.
statement of black letter law for rules they will apply
Winchester-Conant Props., Inc. , 322 F.3d 26, 41 (1st
later, so they choose authoritative courts and state
Cir. 2003). (Doc B005 (PR), emphasis in original.)
their articulation of the rules. There is no indication of
2. Actual damages consist of the revenue that
how the precedent cases turned out. The authors are
would have accrued to plaintiff but for the
not urging similar outcomes here, just that the same
infringement. See e.g., Data General v. Grumman Sys. rules be applied. This is the most common pattern
Support Corp., 36 F.3d. 1147,1171 (1st. Cir. 1994). (Doc among the caserefs, and it does not exhibit any
B006 (PR), emphasis in original.)
characteristics of the EAS.
Brian N. Larson, JD, PhD, assistant professor of rhetoric and technical communication
686 Cherry Street, Atlanta, GA 30332-0165, @rhetoricked
A Unit of the University System of Georgia

An Equal Education and Employment Opportunity Institution

3. In DeCastro, Computer Management Assistant Co.

(CMAC), licensed DeCastro to sell a software product
then later filed copyright infringement claims against
him when he used his experience with CMAC to
modify a different companys software product. The
court found the two software programs substantially
different, even though they served the same purpose,
because the modifications found in the defendants
product provided a different way of operating in a
similar fashion as the original product. In fact, even
though the new program contained portions of code
that potentially came directly from the first program,
the customization and modifications created a
difference between the two products showing that any
alleged copying was not so extensive that it rendered
the offending and copyrighted works substantially
similar. The facts of this case are nearly identical.
These allegedly copied items make up approximately
one percent (1%) of the 27,313 lines of source code in
Harmonix. The items make up approximately four
percent (4%) of the Workbench source code. (Doc.
B009 (TX), emphasis, except underlining, in original.)
4. Instead, the court must make a qualitative
judgment about the character of the work as a whole
and the importance of the substantially similar
portions of the work. Whelan Associates, Inc. v. Jaslow
Dental Lab., Inc., 797 F.2d 1222, 1245 (3d Cir. 1986);
Atari, Inc. v. North American Phillips Consumer
Electronics Corp., 672 F.2d 607, 618 (7th Cir.); see
also Universal Pictures v. Harold Lloyd Corp., 162 F.2d
354 (9th Cir.1947) (finding copyright violation for
copying of 20% of plaintiffs film); In re Personal
Computers and Components Thereof, 1983-84
Copyright L.Dec. (CCH) 25,651 at 18,931 (Intl Trade
Commn Mar. 9, 1984) (18%-25% identity is sufficient
for substantial similarity); Elsmere Music, Inc. v.
National Broadcasting Co., 482 F.Supp. 741, 744
(S.D.N.Y.), affd, 623 F.2d 252 (2d Cir.1980) (similarity
uncontested by defendants where four notes out of
100 measures and two words out of 45 were
identical). (Doc. B011 (TX), emphasis in original.)

3. Here, the author is comparing the facts from the

DeCastro case, which addressed an issuesubstantial
similarityalso before this court. It summarizes the
facts in DeCastro (major premise) before pivoting on
the outcome of DeCastro (underlined text, minor
premise) and switching to an exposition of the facts in
this case (major premise). Note how it starts with
specific names of the parties (DeCastro and CMAC),
but then switches to general terms (plaintiff and
defendant); this makes it easier to infer the
conclusion: that the defendants copying in this case
did not rise to the level of substantial similarity. The
argument is an enthymeme because it omits the
conclusion, though it leaves little doubt. And like all
the examples of exemplary reasoning in this pilot
study, it is also enthymemic in that it never addresses
the relevant similarity premise. It almost seems a given
that if the precedent required resolution of the same
legal issue as the current case, relevant similarity is
assumed. In the EAS, it might best be regarded as a
critical question rather than part of the schema.
4. Much like the authors in examples 1 and 2, the
author here is seeking a black letter statement of the
law, but apparently the Fifth Circuit (which would be
binding precedent in this Texas case) could not provide
the answer. Consequently, the author cites two other
circuits (3rd and 7th) for the assertion. Note that this
brief discusses facts about the current case (major
premise) in text adjacent to this excerpt, but not
printed here. The remaining three caserefs represent a
complicated mix. In the first, we learn some facts
about the precedent (major premise) and its outcome
(finding violation, minor premise). The second
presents a problem; it states a threshold (18-25%) that
is sufficient, but does not say whether that case
reached the threshold. The author may inadvertently
have omitted that fact, or she may tactically have
omitted it if the case went the wrong way. The final
case reference is to one where similarity was
uncontested, but it is contested here; the case is
inapposite and should not form the basis of an EAS.

Questions

A. How omitting can an enthymeme be? In the EAS, if the minor premise is omitted (that is, if we dont know
the outcome in the cited case), can we say that the EAS is evidenced at all?
B. Should the EAS be revised to treat the relevant similarity premise not as a premise but as the grounds for a
critical question? But note the potentially misleading use of the EAS in example 4.