Law Commons^™

Persistent Identifiers And The Next Generation Of Legal Scholarship, Aaron Retteen, Malikah Hall-Retteen

Faculty Scholarship

This article discusses the importance of the most common persistent identifiers in scholarly communications—the digital object identifier and the ORCID identifier—to legal scholarship. Persistent identifiers help preserve and disseminate academic content and data-driven services that leverage this information standard are now integrated into the publication process. Because legal publishers have not widely adopted persistent identifiers, the legal discipline cannot enjoy the benefits offered by this system. This article looks at barriers to implementing persistent identifiers among legal publishers and provides an anecdotal example of creating a sustainable workflow between the law library and student-run law journals.

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Creating Persistent Law Review Article Links With Digital Object Identifiers, Valeri Craigle, Benjamin J. Keele, Aaron Retteen

Faculty Scholarship

A case study for how to use digital object identifiers (DOIs) to make online journals more accessible and improve their site user reports.

Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans

Faculty Scholarship

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …

Reconceiving Argument Schemes As Descriptive And Practically Normative, Brian N. Larson, David Seth Morrison

Faculty Scholarship

We propose a revised definition of “argument scheme” that focuses on describing argumentative performances and normative assessments that occur within an argumentative context, the social context in which the scheme arises. Our premise-and-conclusion structure identifies the typical instantiation of an argument in the argumentative context, and our critical framework describes a set of normative assessments available to participants in the context, what we call practically normative assessments. We distinguish this practical normativity from the rationally or universally normative assessment that might be imposed from outside the argumentative context. Thus, the practical norms represented in an argument scheme may still be …

Centering Students’ Rhetorical Knowledge: The Community Of Inquiry As Formative Assessment, Brian N. Larson

Faculty Scholarship

This essay describes an approach to peer review and classroom workshopping intended to develop a community of inquiry in the first-year law school classroom, center students’ own rhetorical knowledge, and establish the authority of students—especially minoritized students—as rhetorical agents. The technique described in this essay works from the presumption that each student who comes to law school comes with rich rhetorical experience. In other words, they have extensive experience constructing discourse suited to certain audiences and certain contexts. They use a variety of tools to construct such discourse, including linguistic registers (or styles) and rhetorical genres (such as the academic …

Endogenous And Dangerous, Brian N. Larson

Faculty Scholarship

Empirical studies show that courts frequently cite cases that the parties did not cite during briefing and oral arguments—endogenous cases. This Article shows the cognitive and rational dangers of endogenous cases and presents an empirical study of their use. I contend that judges should avoid using endogenous cases in their reasoning and opinions. This Article’s first significant contribution is to provide the first exhaustive treatment in the American legal literature of the rational bases upon which defeasible legal deductions and legal analogies may be built and the critical questions or defeaters that can weaken or bring them down. As far …

Review: The Dialogical Roots Of Deduction: Historical, Cognitive, And Philosophical Perspectives On Reasoning, Brian N. Larson

Faculty Scholarship

The balance of this review addresses matters in the book that should be of particular interest to readers in the legal rhetoric and communication community. First, it addresses some concepts central to Dutilh Novaes’ effort. Second, it surveys the book’s organization, identifying some key observations and conclusions that she supports with careful evidence and argumentation. Third, it addresses Dutilh Novaes’ attention to non-European and non-Western research and logical traditions. Finally, it considers some difficult and technical passages, noting those readers should work through because the payoff is worth it and others I believe readers in our field might skip.

Precedent As Rational Persuasion, Brian N. Larson

Faculty Scholarship

The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding law and the society it shapes. An inquiry that explores the very foundations of all legal reasoning 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. As the first step in a comprehensive empirical effort to answer this question, this article performs a …

Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge

Faculty Scholarship

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s …

Law's Enterprise: Argumentation Schemes & Legal Analogy, Brian N. Larson

Faculty Scholarship

Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the …

Enough Said: A Proposal For Shortening Supreme Court Opinions, Meg Penrose

Faculty Scholarship

The role of the judiciary, Chief Justice Marshall famously advised, is “to say what the law is.” Yet, how often do the justices issue a written opinion that ordinary Americans can understand? The Supreme Court increasingly issues lengthy and complex opinions, often containing multiple concurring and dissenting opinions. These opinions can be as confusing as they are verbose.

“To Say What the Law Is Succinctly: A Brief Proposal,” analyzes the justices’ legal writing. Are the justices effective in saying what the law is? Insufficient attention has been devoted to evaluating the justices’ writing and their efficacy at communicating the law. …

A Call For Strengthening The Role Of Comparative Legal Analysis In The United States, Irene Calboli

Faculty Scholarship

This Essay highlights the importance of comparative legal analysis with particular emphasis on the role that this methodology could play for intellectual property scholarship in the United States. In particular, this Essay suggests that U.S. scholars could consider turning with more frequency to comparative legal analysis as an additional methodology to use in their research. Yet, the objective of this Essay is not to suggest that U.S. scholars should engage in comparative legal analysis in lieu of other types of research methodologies. Instead, this Essay simply supports that comparative legal analysis could play a larger role compared to the one …

The Structured Writing Group: A Different Writing Center?, Brian N. Larson, Christopher Soper

Faculty Scholarship

This article describes the objectives, development, and some preliminary results of a program the authors led at the University of Minnesota Law School in academic year 2014-15. They wanted the “Structured Writing Group” (SWG) project to achieve some outcomes traditionally associated with writing centers: first, improving the student writing process by facilitating collaboration with a writing expert; and second, exposing students to additional audiences for their writing. We added a third goal of improving the experience and performance of multilingual students in the legal writing program.

Teaching Remedial Problem-Solving Skills To A Law School's Underperforming Students, John F. Murphy

Faculty Scholarship

This article describes a course called the "Art of Lawyering" developed by the Texas A&M University School of Law to help the bottom quarter of the 2L class develop the critical-thinking and problem-solving skills they should have learned in their first year of law school. Students in the bottom quarter of the class at the beginning of their 2L year are most at risk for failing the bar exam after graduation. The Art of Lawyering gives these students the structural framework necessary to solve problems like a lawyer, improve their performance in law school, and pass the bar exam.

The …

Who Wants To Be A Muggle? The Diminished Legitimacy Of Law As Magic, Mark Edwin Burge

Faculty Scholarship

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal …