Copyright (c) 2009 All rights reserved. http://works.bepress.com/wilson_huhn Recent documents in Wilson R. Huhn en-us Mon, 05 Jan 2009 15:30:09 PST 3600 http://works.bepress.com/wilson_huhn/51 http://works.bepress.com/wilson_huhn/51 Fri, 16 May 2008 11:10:12 PDT In his 2007 confirmation hearing before the Senate Judiciary Committee considering his nomination to be Attorney General of the United States, Judge Michael Mukasey refused to address the legality of waterboarding. In my opinion there is no reasonable dispute about this matter. The laws of the United States make waterboarding unlawful in no uncertain terms. Wilson R. Huhn Constitutional Law http://works.bepress.com/wilson_huhn/50 http://works.bepress.com/wilson_huhn/50 Wed, 12 Mar 2008 08:26:01 PDT The Five Types of Legal Argument succeeds both as a work of legal theory and as a practical guide to legal reasoning for law students, lawyers and judges. Huhn introduces each concept separately, and from many parts Huhn develops an intricate and nuanced theory of what law is. Huhn also shows readers how to identify, create, attack, and evaluate the five types of legal arguments (text, intent, precedent, tradition and policy) and how to weave the different types of arguments together to make them more persuasive. The Second Edition of this book further develops both the theoretical and practical themes of the work. In this edition Huhn introduces two additional ways of attacking legal arguments, and in a new chapter he utilizes principles of deductive logic to demonstrate the validity of the theory of the five types of legal arguments. The principal strength of this book is its clarity. The book is written in plain language that is easily understood both by lay persons and professionals, and it is organized simply and logically. Reviewers and legal scholars have described the book as "fascinating" and "masterful." The Five Types of Legal Argument is required reading at a number of leading American law schools, and it is recommended for anyone who wishes to understand how to construct and how to critique legal arguments. Wilson R. Huhn Jurisprudence http://works.bepress.com/wilson_huhn/49 http://works.bepress.com/wilson_huhn/49 Wed, 05 Dec 2007 13:12:08 PST Representative democracy in America faces a serious threat. Our society is becoming increasingly alienated from the political process. A powerful indicator of this is the reduction in voter turnout; participation in presidential elections plummeted from 62.8% in 1960 to 48.9% in 1996. In examining this trend of political alienation in America, it is useful to study the legal premises of the most alienated segment of our body politic: The Patriot Movement.The twin pillars of representative democracy are acceptance of majority rule and respect for the rule of law. The purpose of participating in political activity in a representative democracy is to become part of a majority that is capable of making law. Any segment of society that does not accept as legitimate the law that the majority creates - any group that does not share the norms of majority rule and the rule of law - has no reason to participate in the political life of the community.The Patriot Movement is such a group. The Patriot Movement has contempt for politics and has cut itself off from political debate in this country. Its members reinforce their own beliefs without listening to others. They believe that the national news media is "nothing but the official mouthpiece of the government," and have adopted "alternative system[s] of communication: mail order book services, computer bulletin boards, gun shows, Bible camps, pamphlets, periodicals and short-wave broadcasts . . . ." The alienation of the Patriot Movement is not idiosyncratic. Rather, it is symptomatic of a larger pattern. The Patriot Movement is merely an extreme example of political alienation in American society. In the conclusion of this Article, I describe six ways to counter the political alienation typified by the Patriot Movement, thereby strengthening the processes of representative democracy. Wilson R. Huhn Jurisprudence http://works.bepress.com/wilson_huhn/34 http://works.bepress.com/wilson_huhn/34 Wed, 28 Nov 2007 14:20:55 PST Wilson R. Huhn Legal History Constitutional Law http://works.bepress.com/wilson_huhn/33 http://works.bepress.com/wilson_huhn/33 Wed, 28 Nov 2007 14:15:41 PST Wilson R. Huhn Constitutional Law http://works.bepress.com/wilson_huhn/32 http://works.bepress.com/wilson_huhn/32 Wed, 28 Nov 2007 14:10:10 PST Directed and moderated the presentation. Wilson R. Huhn Legal History Constitutional Law http://works.bepress.com/wilson_huhn/14 http://works.bepress.com/wilson_huhn/14 Wed, 28 Nov 2007 09:38:40 PST The purpose of this Article is to describe a pluralistic model of reasoning that may be used to teach the skills of legal analysis. There are different ways to categorize legal arguments. Perhaps the most common method is to identify different legal arguments with specific schools of jurisprudence or moral philosophy. This is the standard approach followed by leading scholars such as Lon Fuller. In a classic article, Fuller illustrated how a murder case could be analyzed utilizing jurisprudential frameworks such as positivism, natural law, social contract, practical wisdom, and legal realism. Another example of this method of characterizing legal arguments was illustrated by R. Randall Kelso, who identified four schools of thought that have dominated the reasoning of the Supreme Court at different periods of American history. Identifying different types of legal arguments by their jurisprudential school is useful for showing the relationship of legal thought to classic forms of political and moral reasoning and for sketching trends of analysis over time. Another powerful strategy for classifying legal arguments is to identify the logical structure of the underlying reasoning. Richard Posner and Vincent Wellman, for example, identify three categories of legal reasoning: formalism, analogy, and realism. The advantage of this system of classification is that the logical strength of different kinds of arguments can be compared and assessed. This system of classification is useful in evaluating the relative merits of *436 formalism and realism, as well as for inquiring into the structure of reasoning by analogy.Over the last two decades legal scholars have developed a third method of categorizing legal arguments. This approach is primarily descriptive, in that it attempts to describe the variety of arguments that lawyers employ in the practice of law and judges use in their opinions. Akhil Amar, for example, recently observed that we interpret the Constitution: through a variety of techniques--by parsing the text of a given clause, by mining the Constitution's history, by deducing entailments of the institutional structure it outlines, by weighing the practicalities of proposed readings of it, by appealing to judicial cases decided under it, and by invoking the American ideals it embraces. Amar further states that "[t]ext, history, structure, prudence, and doctrine--these are the basic building blocks of conventional constitutional argument." This approach has been variously called "eclectic," "polycentric," and "pluralistic." Eskridge and Frickey describe their approach to statutory interpretation as an approach where "a court considers a broad range of textual, historical, and evolutive evidence when it interprets statutes" calling it "eclectic" and "polycentric." The term "pluralistic" was coined by Stephen Griffin, who defined the term as follows: "Pluralistic theories of constitutional interpretation hold that there are multiple legitimate methods of interpreting the Constitution." Michael Dorf prefers the term "eclectic" to describe theories that "recognize that courts employ a variety of forms of argument" and eschews the term "pluralistic" in order to avoid confusion with the concept of cultural pluralism and to avoid implying that there is more than one right answer to questions of constitutional law. Part II of this Article describes a pluralistic model of law that is based upon the theories of Bobbitt, Eskridge, and Frickey. Five types of legal argument exist: text, intent, precedent, tradition, and policy. Each type of argument may be considered an information set or a category of evidence admissible to prove what the law is.Part III describes how to measure the persuasiveness of legal arguments. There are two challenges to legal arguments: intramodal and intermodal. An intramodal challenge attacks a legal argument on its own terms, subjecting each type of argument to characteristic lines of attack. I identify twenty-five different types of intramodal challenges. Intermodal challenges attack the legitimacy or the weight of each kind of argument. Each kind of argument advances a different underlying purpose of our system of laws; the weight one assigns to each kind of argument reflects the ordering of these underlying values. The persuasiveness of a legal argument is dependent upon both its intramodal strength and the weight accorded to the kind of argument asserted.Part IV suggests that the art of "thinking like a lawyer" consists of mastering the ability to understand, create, critique, and evaluate the five types of legal argument. In particular, I discuss how to teach students to critically evaluate policy arguments and how to make the connection between rules and policies. Wilson R. Huhn Legal Education http://works.bepress.com/wilson_huhn/13 http://works.bepress.com/wilson_huhn/13 Wed, 28 Nov 2007 09:11:20 PST During the nineteenth century, law was equated with science, and legal reasoning was thought to be a species of deductive logic. Consistent with this notion, judicial opinions have traditionally been summarized in the form of syllogisms, that is, as arguments of deductive logic. More specifically, judicial opinions have been described as chains of syllogisms, reasoning from base premises to ultimate conclusions. The principal thrust of this article is to demonstrate that in hard cases, judicial reasoning proceeds not by way of deduction, but by evaluation and balancing.Accordingly, Part II of this article compares law with science. Historically, law was considered a science and was thought to have the same underlying structure. Both law and science consist of sets of rules; both are concerned with predicting events; both legal reasoning and scientific reasoning use a framework of deductive logic to reason from general principles to particular results; and both legal principles and scientific principles evolve over time.Over the last century, however, legal scholars have rejected the identification of law with science. The principal difference between law and science is that while science is based upon and must be reconciled with objective observations of nature, law arises from value judgments.Part III uses the structure of the syllogism to explain the difference between easy cases and hard cases. Easy cases are governed by unambiguous legal rules of unchallenged validity; in such cases, the legal conclusion follows deductively from the applicable rule of law. However, as several scholars have noted, there are two kinds of hard cases: cases where the applicable rule of law is ambiguous in relation to the facts of the case (questions of ambiguity), and cases where it is uncertain what the applicable rule of law is (questions of validity). Ultimately, all hard cases, both questions of ambiguity and questions of validity, are resolved in the same manner, by resort to the fundamental categories of legal argument. This exposes a second fundamental difference between law and science: while science is grounded in a single source (observations of the physical universe), law springs from multiple sources (text, intent, precedent, tradition and policy), which often give rise to legitimate but conflicting interpretations of the law.Part IV describes the use of the syllogism in analyzing judicial opinions. Case briefs are not mere syllogisms?they are chains of syllogisms ("polysyllogisms"), in which the conclusions of syllogisms earlier in the chain supply the premises of syllogisms that are later in the chain. Questions of ambiguity arise when the minor premise of a legal argument is challenged, while questions of validity represent a challenge to the major premise of a legal argument. At the base of each chain of syllogisms are premises about the law. The base major premises of each chain of legal reasoning consist of the five types of legal argument, while the base minor premises are the specific items of evidence of what the law states. The polysyllogistic approach thus serves as a formal proof of the pluralistic nature of legal reasoning.Part V illustrates the limits of syllogistic reasoning by demonstrating how judicial reasoning in hard cases proceeds not by deducing conclusions from factual premises, but rather by evaluating the weight of competing arguments. Furthermore, rather than a "chain" of syllogisms, a more appropriate metaphor for legal reasoning is a "cable" of arguments that acquires persuasive force from the confluence of the different types of argument. Ultimately, the persuasiveness of a legal argument depends upon its susceptibility to attack within each category of legal argument and upon the relative weight accorded to the different categories of legal arguments in the context of the particular case. Wilson R. Huhn Legal Education http://works.bepress.com/wilson_huhn/12 http://works.bepress.com/wilson_huhn/12 Tue, 27 Nov 2007 13:39:41 PST Book review. Wilson R. Huhn Book Reviews http://works.bepress.com/wilson_huhn/11 http://works.bepress.com/wilson_huhn/11 Tue, 27 Nov 2007 12:43:51 PST In the late 19th Century, legal reasoning was dominated by formalistic analysis. Judges and lawyers reasoned deductively from base principles. Legal historians have persuasively described how leading judges and scholars fomented a revolution in legal thought in the 20th Century. Starting about 1910, legal realism--or policy analysis-- entered legal reasoning to the point that today it would be unusual to find a judicial opinion or brief that fails to explore the policy implications of an interpretation of the law. This historical shift from formalism to realism suggests that there are stages of legal reasoning.In this Article, I argue that formalism, analogy and realism should be considered to be the stages of legal reasoning. First, psychological research suggests that these methods of reasoning correspond to stages of cognitive and moral development. Second, examination of judicial opinions in hard cases reveals that courts progress from formalism, to analogy, to realism, in resolving difficult questions of law. Third, these three forms of reasoning are necessary components in the evolution of rules and standards. In characterizing these modes of analysis as "stages," I do not mean to imply that analogy is superior to formalism or that realism is superior to them both. In fact, one might reasonably argue, as Justice Antonin Scalia would, that the hierarchy proceeds in the opposite direction, in that one is forced to resort to analogy only where formalism has failed, and that realism is the last resort of all. It would be even more accurate to reject hierarchy altogether, and the concomitant conceit that one form of legal analysis is superior to another. Rather than levels in a hierarchy, formalism, analogy and realism are all stages of a cycle, each of which is necessary for the law to progress. The ultimate purpose of legal analysis is to create a system of laws that is clear, consistent and just, a code of conduct that is universally understood and accepted. But this is a task that is beyond human ability. As H.L.A. Hart observed, a perfect system of laws cannot be created "because we are men, not gods." However, formalism, analogy and realism each play a critical role in the attempt to create a code of conduct that is logical, predictable and fair.Accordingly, Part I of this Article defines formalism, analogy and realism by describing the psychological theories of James Mark Baldwin, Jean Piaget and Lawrence Kohlberg insofar as they shed light upon the cognitive and moral aspects of legal reasoning in general and formalism, analogy and realism in particular. Formalism represents the "rule-bound" thinking characteristic of the Piagetian stage of concrete operations and the Kohlbergian stage of conventional thought. Realism, whose concern is what the law might be, represents the Piagetian stage of formal operations and the Kohlbergian stage of postconventional thought. Reasoning by analogy straddles both stages; formalist analogies are concrete and conventional, while realist analogies are abstract and postconventional.Part II illustrates how formalism, analogy and realism are sequentially invoked to resolve hard cases. When society changes, or other unexpected events occur that give rise to unforeseen legal problems, formalist rules fail us and we rely upon analogies. When these analogies prove insufficient as well, we turn to realism, balancing all of the underlying values and interests to develop new rules of law. In hard cases, reasoning by analogy serves as a bridge between formalism and realism. Part III argues that the evolution of rules into standards, and standards into rules, also demonstrates the stages of legal reasoning. Evolution of the law in both directions is achieved by drawing analogies. Realist analogies help turn rules into standards and formalist analogies help turn standards into rules. The law evolves from rules to standards and back again in an unending cycle of assimilation and accommodation.I conclude that none of the three modes of analysis standing alone is adequate to produce a clear, consistent and just system of laws. Legal progress depends upon using all three modes of analysis. Wilson R. Huhn Law - methodology