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Full-Text Articles in Law

Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger Jan 2014

Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger

Linda L. Berger

Drawing on recent studies in social cognition, decision making, and analogical processing, this article will recommend that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the …


A Revised View Of The Judicial Hunch, Linda L. Berger Jan 2013

A Revised View Of The Judicial Hunch, Linda L. Berger

Linda L. Berger

Judicial intuition is misunderstood. Labeled as cognitive bias, it is held responsible for stereotypes of character and credibility. Framed as mental shortcut, it is blamed for overconfident and mistaken predictions. Depicted as flashes of insight, it takes credit for unearned wisdom. The true value of judicial intuition falls somewhere in between. When judges are making judgments about people (he looks trustworthy) or the future (she will be the better parent), the critics are correct: intuition based on past experience may close minds. Once a judge recognizes a familiar pattern in a few details, she may fail to see the whole …


Studying And Teaching "Law As Rhetoric": A Place To Stand, Linda L. Berger Jan 2010

Studying And Teaching "Law As Rhetoric": A Place To Stand, Linda L. Berger

Linda L. Berger

This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and reason. Second, offering rhetorical alternatives allows law professors to enrich their own study and teaching and to develop a more nuanced understanding of the law school classroom …


How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger Jan 2009

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

Linda L. Berger

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing “a sea-change,” family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income. This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …


What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger Jan 2004

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

Linda L. Berger

No abstract provided.


Applying New Rhetoric To Legal Discourse: The Ebb And Flow Of Reader And Writer, Text And Context, Linda L. Berger Jan 1999

Applying New Rhetoric To Legal Discourse: The Ebb And Flow Of Reader And Writer, Text And Context, Linda L. Berger

Linda L. Berger

No abstract provided.