Precedent as Rational Persuasion: An Empirical Study
58 Pages Posted: 28 Feb 2020 Last revised: 6 Apr 2020
Date Written: April 4, 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 a narrower research question: what types of uses advocates and judges made of cases in 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 article then explores a second question, whether judges and advocates placed different values on different types of uses of prior opinions. This article argues that advocates’ and judges’ practices should inform what I call ‘metanormative’ legal theory — the arguments legal scholars and law teachers make about the norms that practitioners should adopt. After discussing available research methods and their inadequacy to the task of answering the research questions, this article reports the development of a new set of research methods.
The findings here show that these practitioners used cited cases to make assertions about legal rules in their arguments about twice as often as they used them to show examples of how rules had been applied, and about four times as often as they used them to make policy arguments. Perhaps unsurprisingly, the practices of judges and advocates differed significantly. But so, too, did those of the prevailing advocates and their less fortunate opponents — suggesting that there might be a common look to the ‘losing brief.’ These theoretical questions thus have very practically and pedagogically interesting answers.
Keywords: emprical legal theory, legal argumentation, legal reasoning, jurisprudence, argumentation theory, legal topoi
JEL Classification: K4
Suggested Citation: Suggested Citation