Scott Brewer

Legal analysis is dominated by legal arguments, and the assessment of any legal claim requires the assessment of the strengths and weaknesses of those arguments. The ‘logocratic’ method is a systematic method for assessing the strengths and weaknesses of arguments. More specifically, it is a method designed to help the analyst determine what degree of warrant the premises of an argument provide for its conclusion. Although the method is applicable to any type of argument, this essay focuses on the logocratic framework for assessing the strengths and weaknesses of evidentiary legal arguments, arguments offered in litigation in which evidentiary propositions are proffered to support hypotheses. The focus is on American law, but the logocratic analysis offered here could be adjusted without much trouble to handle arguments about evidence in other systems of litigation. In any legal system that aspires to have a fact-finding process that is sufficiently reliable to meet the requirements of justice, we might fashion an analogue for the Socratic maxim ‘the unexamined life is not worth living’: the unexamined evidentiary argument is not worth believing. The logocratic method seeks to help the evidence analyst pursue that Socratic mission, tailored to the rules and institutions of evidence law.

Illuminates legal reasoning -- and its justification At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power. Explores enduring questions Focusing on work over the past century, the essays address important recurring questions, such as: When a judge or a lawyer reasons to a conclusion about what is legally required in a given case, must he also ask what is morally required? To what extent do a judge's personal, political, or moral biases affect his legal reasoning? What is the impact of such biases? Can all such biases be avoided? Is legal reasoning similar to reasoning in mathematics, logic, and linguistics, the physical sciences, the social sciences, or literature and history? Do formal logical modes of argument play any roles in legal reasoning? Solid coverage, well organized The articles were chosen to present some of the most influential works on the topic, as well as less familiar works that are thought provoking and informative. Each volume also offers a representative range of theoretical approaches to its topic, contains an introduction that locates the subject within the larger framework oftheories of legal reasoning and jurisprudence, and includes bibliographical notes on further readings. Many 19th century legal theorists argued that deduction is the central mode of legal reasoning, and that legal argument is like a deductive proof in mathematics or logic. They were attracted to this "deductivist" concept because it suggested that legal reasoning could be politically and morally neutral. This volume brings together some of the most thought-provoking articles on both sides of the debate. It also contains several leading articles that explain the role of probabilistic judgments and presumptions in various types of legal arguments, including the laws of evidence and criminal procedure. The collection is a solid introduction to the basic modes of logical argument in legal reasoning.

At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.

This thesis addresses two enduring issues in legal theory-- rationality and its association with rule of law values--by offering detailed models of two patterns of legal reasoning. One is reasoning by analogy. The other is the inference process that legal reasoners use when they defer epistemically to scientific experts in the course of reaching legal decisions. Discussions in both chapters reveal that the inference pattern known as "abduction" is a deeply important element of many legal inferences, including analogy and epistemic deference to experts--something that has been largely unrecognized in legal theory. After presenting a detailed model of analogy, Chapter 1 argues that legal reasoning by analogy, like analogical argument in logic, mathematics, and the natural sciences, possesses a great deal of rational force when properly executed. Chapter 2 investigates the reasoning process by which non-expert legal reasoners defer epistemically to the judgments of scientists. It presents five main conclusions or explanations. Every practical syllogism actually consists of two distinct chains of inference, and what is usually considered in writings on practical reasoning to be the minor premise of a practical syllogism is actually the conclusion of a separate chain of argument. When a practical reasoner defers epistemically to a theoretical expert, this separate chain of argument has a special structure, which is modeled in Chapter 2. The non-expert legal reasoner must always make a prescriptive practical judgment about the standard of epistemic appraisal and level of epistemic confidence that the reasoner requires of scientific evidence before it may be relied upon in reaching a legal decision. Legal systems should be committed to an emergent rule of law ideal identified and referred to as "intellectual due process" which condemns epistemically arbitrary reasoning processes insofar as they play a role in legal decisionmaking. Since non-arbitrariness is a necessary condition of both epistemic and legal legitimacy, we have compelling reason to doubt that the non-arbitrariness condition can be met when non-experts defer epistemically to scientific experts.