Article of Interest: "Endogenous and Dangerous," by Brian Larson

Professor Brian Larson (Texas A&M University School of Law) has posted "Endogenous and Dangerous" on SSRN. Here is the abstract:

As far as we know, Aristotle was the first Westerner to formalize logic, about 2,500 years ago. But he recognized immediately that the valid deductive forms of reasoning he described do not take us far in reasoning about human affairs. Nevertheless, contemporary law scholars talk about rule-based and deductive reasoning as if it exists in the law. But all legal arguments, even apparently deductive ones, are subject to defeat by counterargument—they are ‘defeasible.’ 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. It shows that legal analogies are in a sense more defeasible, and thus more complex, than legal deductions, and it suggests that legal policy arguments are more defeasible still. It is no surprise then that a previous study showed that judges prefer rule-based arguments or legal deductions in their opinions over legal analogies, and legal analogies over policy-based arguments.

But what happens when judges build these arguments around cases that the parties have not cited—‘endogenous cases’? Studies suggest that judges do so about half the time. The theory of defeasible arguments suggests judges should be reluctant to do so, and they should be most reluctant to do so with legal analogies and policy arguments. But until now, no study has examined how judges use endogenous cases. This article’s second significant contribution is an empirical study of cases judges cited in a random sample of federal district court opinions, identifying where they found them and how they used them. It also identifies a hierarchy of badness among endogenous case uses, warning judges away from the most dangerous. It concludes that judges should avoid endogenous cases or, at a minimum, permit the parties to argue the cases before their application. Though the opinions studied here were from federal trial courts, the principles extend to any tribunal that uses opinions from previous cases to guide its decision-making.

-CM