Week 9 - Rules
Overview
The primary focus for the next few weeks will be on rules in legal reasoning.
Additionally, we will consider and practice the use of visual argument in legal writing. Finally, we will consider two legal reasoning strategies: linear analysis and Toulmin analysis. The graded assignment will be to use a visual medium to persuade an audience (perhaps fellow members of a jury?) about what level of homicide or manslaughter to convict a defendant of in one of the cases in the homicide unit in Behrens. The visual may a presentation, (Prezi, Powerpoint or Google slides), an infographic, or a video. More details will be available in the Major Assignments tab.
Two Types of Laws: Common Law & Enacted LawIn the emotional distress cases, we were working with common law, law that develops as courts deal with individual situations and follow precedents established in earlier cases. The jury instructions and the Restatements were explanations that derived from common law.
By contrast, in this unit, we are going to work with enacted law, in particular, the Arkansas laws on homicide, which are found in the Arkansas homicide statutes and elaborated in the Arkansas jury instructions on homicide. Enacted law is probably what you usually think about when you think about laws. Enacted law is law that has been enacted by some group--and includes constitutions, statutes, ordinances, and regulations. |
VocabularyHere are some words you should know. Look them up and write down the definitions. You will find the material much more understandable if you understand these terms:
Two dictionaries that might be helpful: Legal Information Institute Dictionary, Black's Online Legal Dictionary. From Margaret Hagan Visual Law Library
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Visual Legal Argument
Visual argument is only recently becoming part of legal communication. It is an important element in many states’ access to justice movements, since the visual may be more accessible to many people. Throughout this site, I've used some graphics developed by Margaret Hagan for her Law by Design project. Hagan, who is the director of Stanford University Law School's Legal Design Lab, is one of several designer/scholars developing material in this exciting new area. I’ve included links to her material on the Legal Links page.
Linear Analysis
Whether rules are enacted or common law, working with them requires one to carefully analyze the rule when applying it to legal fact situations. To analyze means to take apart. Linear analysis is a term given by Norman Brand and John O. White in their Legal Writing: The Strategy of Persuasion text (which happens to be the source of the exercises we started with in the course). As Brand and White explain in the "Logic and Argument" chapter we will read this week, "linear analysis is the taking apart of a law problem, dividing it into its constituent parts (e.g., torts or crimes), further subdividing those parts into their elements, and, finally, deciding whether each of those elements is present" (106). This sort of analysis is helped by visual representation. Brand and White, for example, use flow-charts.
Toulmin AnalysisLike IRAC and the syllogism, Toulmin Analysis is an analytical system for describing the parts of logical argument. This system was developed in The Uses of Argument by Stephen Toulmin, a philosopher concerned that the syllogism did not reflect the way reasoning occurs in actual life.
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The Toulmin approach differs from syllogistic reasoning because
- it works inductively, while the syllogism works deductively
- it considers other parts of reasoning besides logic, such as objections and qualifications
- it has heuristic potential.
Reading
- Read (and bookmark) the Arkansas statutes on homicide. The Arkansas Code is available on the Arkansas Legislature's website. See the menu on the left of the site. The homicide statutes are in Title 5, subtitle 2: Crimes against the person.
- Read (and bookmark) the Arkansas jury instructions on homicide. The jury instructions are on the Arkansas Judiciary's website under Forms and Publications and then under Newsletters and Publications.
- Read selection on Linear Analysis from Norman Brand and John O. White's Legal Writing: The Strategy of Persuasion
- Read Week 9 lecture on Linear Analysis
- Read pp. 172-196 in Behrens, particularly the homicide cases (Killing in a San Francisco Bar, p. 182; Russian Poker, p. 184; Chicago Gang Shooting, p. 185; Mercy Killing, p. 188
Activities
- Participate in a check-in Tuesday discussion in Bb.
- Participate in discussion 9.1 in Blackboard. Start by Thursday, March 28, 11:59 p.m. and complete by Sunday, March 31.