When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme Court
Lance N. Long
Stetson University College of Law
William F. Christensen
Brigham Young University
December 12, 2012
Oregon Law Review (forthcoming)
Stetson University College of Law Research Paper No. 2013-7
This paper is the third and final article in a series that discusses research performed over the past four years regarding the effect of certain language usages in appellate briefs and opinions. The first two articles, "Does the Readability of Your Brief Affect Your Chance of Winning on Appeal?" and “Clearly Using Intensifiers is Very Bad — Or Is It?”, were published in the Journal of Appellate Practice & Process and The Idaho Law Review, respectively. This article (in the Oregon Law Review), proposes a theory of "argumentative threat" which hypothesizes that when faced with an argument that a legal writer believes — or knows — she is likely to lose, the writer will tend to write in a style that uses more intensifiers. There is also some evidence (not statistically significant) that longer sentences and longer words may be associated with a defensive style of writing. The article illustrates its point by using recent majority and dissenting opinions of the U.S. Supreme Court. The article also suggests that the “conservative” Justices use more intensifiers in their dissenting opinions than their “liberal” counterparts.
Number of Pages in PDF File: 27
Keywords: argumentative threat, language usage, legal writing
JEL Classification: K00, K49Accepted Paper Series
Date posted: May 23, 2013 ; Last revised: November 21, 2013
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