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Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger
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 …
Trout Of Bounds: The Effects Of The Federal Circuit Court Of Appeals’ Incorrect Fifth Amendment Takings Analysis In Casitas Municipal Water District V. United States, Raymond Dake
Raymond Dake
Abstract: The Federal Circuit Court of Appeals decision in Castias Municipal Water District v. United States to apply a physical takings analysis to the partial interference of the water district’s water rights by the government in order to protect the steelhead trout through enforcement of the Endanger Species Act (“ESA”) is incorrect, plain and simple. Instead, I argue for the use of a regulatory takings analysis for partial takings of rights to use water under the Penn Central Test. The Casitas Court’s ruling misapplies California water law, disregards U.S. Supreme Court precedent from Tahoe-Sierra, ignores underlying theory and policy to …
Interpretation And The Internet, Cameron J. Hutchison
Interpretation And The Internet, Cameron J. Hutchison
Cameron J Hutchison
Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of …
Mind The Gaps: Teaching Students To Address Flaws In Their Analysis, Christopher R. Trudeau
Mind The Gaps: Teaching Students To Address Flaws In Their Analysis, Christopher R. Trudeau
Christopher R Trudeau
A main problem for law students is that they make too many logical assumptions – or logical leaps, as I call them – in their analysis. Generally, students tend to do two things. First, students leave gaps in their law; that is, students fail to fully develop the law, define key terms, and use analogy to past cases to help bolster their arguments. Second, some students leave gaps in their application – they assume the reader knows the facts, so they don’t explain things to the reader.This presentation explores various techniques used to teach students to find and fill gaps …