Precedent as Rational Persuasion: An Empirical Study (was 'Using Cases: An Empirical Study of Judges' and Lawyers' Practices')
76 Pages Posted: 28 Feb 2020 Last revised: 9 Mar 2020
Date Written: March 6, 2020
The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on all our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding this country’s laws and society. This 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. This article frames two narrower research questions—in terms of theories of legal reasoning—regarding the uses lawyers and judges make of prior court opinions: first, whether and to what extent advocates and judges place different rational persuasive values on different types of uses of prior opinions, including rules, examples, and policy statements; second, whether and to what extent advocates and judges make arguments from example (called ‘legal analogies’ here) without appealing to or formulating a governing rule. After discussing available research methods and their inadequacy to the task of answering these questions, this article reports the development of a new set of research methods. It then presents a baseline measurement of the uses of cases within the context of a corpus of 199 textual artifacts: reported trial-court opinions, and the lawyers’ briefs that led to them, in a random sample of copyright cases addressing fair use between 2012 and 2018. The answers to the two research questions suggest that the practices of judges and advocates differ significantly, but so, too, do those of the prevailing advocates and their less fortunate opponents. These theoretical questions thus have very practically and pedagogically interesting answers.
Keywords: emprical legal theory, legal argumentation, legal analogy, argumentation theory, legal topoi
JEL Classification: K4
Suggested Citation: Suggested Citation