Monday, August 24, 2020
I just heard the sad news that retired Hofstra law professor John Dewitt Gregory has passed away. Kevin Maillard has a wonderful tribute on the Faculty Lounge.
I knew John at Hofstra. He was a mentor and a wonderful friend. He will be missed.
Here is John's biography from the Hofstra website:
"Professor Gregory, a former vice dean of the Law School, teaches primarily in the areas of matrimonial and family law. He is an elected member of the American Law Institute, and served as an adviser to the Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations. He is a fellow of the American Bar Foundation and the New York Bar Foundation, and a member of the board of editors of the Family Law Quarterly. He is the author of The Law of Equitable Distribution; Understanding Family Law (with Swisher & Scheible); and Property Division in Divorce Proceedings: A Fifty State Guide (with Richards and Wolf); and he has written extensively in the areas of juvenile law, family law and constitutional law. He is a former chair of the Section on Family and Juvenile Law of the Association of American Law Schools and of the Section on Minority Groups.
Following the general practice of law in Harlem and an association with a New York City firm specializing in commercial and labor law, Professor Gregory served as an assistant attorney general in the Litigation Bureau of the New York State Department of Law. Subsequently, he was assistant to the commissioner for departmental legal affairs in the Nassau County Department of Public Welfare and later served as executive director of Nassau Law Services, Inc. Professor Gregory is the former general counsel and executive director of New York City's Community Action for Legal Services, Inc., the largest legal services program in the nation. Following his appointment to the Hofstra faculty, he was among the initial directors of the Community Legal Assistance Corporation, the school's neighborhood law office and first clinical program, where he worked as an attorney.
Professor Gregory has held appointments as lecturer in Law and Social Welfare at the School of Social Work at Adelphi University and at New York University School of Continuing Education. He is a director and vice chair of the National Center for Law and Economic Justice, and former chair of the Committee on Matrimonial Law of the Association of the Bar of the City of New York. Professor Gregory received the Law Faculty Distinguished Service Award for 1978-79, and in 1982 received the Outstanding Faculty Award presented by the Law School's chapter of the Black American Law Students' Association for his untiring dedication and service. In 1984 he was selected to deliver the third annual Hofstra University Distinguished Faculty Lecture."
Sunday, August 23, 2020
Pepperdine Dean Paul Caron has sent an inspiring message to his law school community: A Message from Dean Paul Caron: Our New Academic Year
"But this is not a normal year. Our world has been upended by a global pandemic, thrusting everything we know into disorder. Our nation has grappled with sweeping protests against racial inequality, violence in many of our cities, and political polarization in advance of the 2020 election. It is true that our ability to excel with respect to rankings through the quality and performance of our students is of great importance; it represents a promise fulfilled to each student who comes to Pepperdine Caruso Law in the hope of graduating and embarking on a promising legal career. But what has made me so proud in recent months goes well beyond those metrics. It is about our ability to model faith and wisdom, leadership and resilience. And to remind a world teetering on the edge that meeting such challenges demands that we 'do justice, love kindness, and walk humbly with our God.' (Micah 6:8)"
Tuesday, August 18, 2020
Five Methods of Legal Reasoning (and Argument)
1. Rule-Based Reasoning:
Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you take a rule (a statute or a case holding) and apply it to a set of facts. (This is a type of deductive reasoning.) Richard Neumann has stated that rules have at least three parts: "(1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present (and the test is thus satisfied); and (3) . . . a causal term that determines whether the result is mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules have "one or more exceptions that, if present would defeat the result, even if all the elements are present." (Id.) An example of a rule would be that intentional infliction of emotional harm occurs if 1) the defendant’s conduct is outrageous, 2) the defendant’s conduct is intentional, 3) the defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if the facts of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times in the middle of the night to harass her (outrageous conduct; intentional conduct) and this causes (causation) her severe emotional distress (element 4), intentional infliction of emotional distress has taken place.
2. Reasoning by Analogy
Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs when one argues that the facts of the precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case. (A is like B, so the rule from A applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild animal, like a tiger, on her property is strictly liable for any damage caused by that animal also applies to pit bulls because a pit bull, although not a wild animal, is inherently dangerous just like a wild animal. The two cases are never exact; reasoning by analogy is a question of degree. The writer must convince the reader that the facts of the two cases are similar enough that the rule from the precedent case should apply to the present case.
3. Distinguishing Cases
Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. For example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous so that the rule from the wild animal cases that an owner of a wild animal should be strictly liable for any damage caused by that wild animal should not apply to toy poodles.
4. Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a case would create a precedent that is good for society. For instance, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because manufacturers could better spread the cost of injuries than consumers. Policy-based reasoning can also be combined with reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent case also applies to the present case so the rule in the precedent case should also apply to the present case.
5. Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule. To synthesize a rule look at the similarities among the facts of the precedent cases and the differences among the facts of the precedent cases. Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not strictly liable for that personal injury.
Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes personal injury or property damage is strictly liable for that personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are inherently dangerous, while toy poodles are not. When two innocent parties are involved, the law usually holds the party liable that keeps dangerous things, like wild animals. The rule applies to both personal injury and property damage.
Update: For more on legal reasoning and other keys to law school success, see my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (2020).
Thursday, August 6, 2020
Here is the Table of Contents to the Second Edition of My Book, Think Like A Lawyer: Legal Reasoning for Law Students and Professionals.
Table of Contents
Chapter One: The Five Types of Legal Reasoning 1
Chapter Two: Reading and Analyzing Cases 9
Chapter Three: Reasoning by Analogy 37
Chapter Four: Rule-Based Reasoning 59
Chapter Five: Synthesizing Cases: Rule Synthesis 73
Chapter Six: Interpreting Statutes 89
Chapter Seven: Writing A Sample Analysis:
The Small-Scale Paradigm 119
Chapter Eight: Responding to Opposing Arguments
and Distinguishing Cases 131
Chapter Nine: Advanced Problem Solving, Creativity,
and Critical Thinking 153
Appendix A: How The American Legal System Developed 179
Appendix B: Canons of Statutory Construction 183
Monday, August 3, 2020
Law Schools Have Diverted Resources from Foundational and Required Courses to More Academic and 'Boutique' Courses between 1973 and 2017-18.
William J. Carney has just posted a study of basic changes in legal education from 1973 to 2017-2018. His most startling conclusion: "resources have been diverted (proportionally) from foundational and required courses to more academic and 'boutique' courses." I find this very troubling. As Professor Carney noted, bar passage rates have declined significantly during the same period. In addition, education research has come up with better methods of teaching students, methods which are being ignored by a significant number of law professors. What students need in the 21st century is more active learning and skills courses, rather than theoretical specialty courses in the area of a professor's Ph.D., which give students no practical help in becoming attorneys.
Here is the syllabus of Professor Carney's article.
"This article surveys basic changes in legal education from 1973 to 2017-2018, using a comparison of the sizes of the student body with the professoriate, and changes in the allocation of faculty resources over this period.
The paper documents law school enrollments over this period. In summary, student enrollments have been on a roller coaster, and now have declined to 1973 levels after a 40% increase. At the same time, faculty numbers have increased by 70%. While this has resulted in more favorable faculty-student ratios, bar passage rates nationally have declined from 82% to 72%. This is a classic picture of a failing industry, which high fixed costs due to tenure and cyclical revenues, forced to raise tuition to support what has become a bloated faculty. It also raises questions of whether declining bar passage rates are caused by the declining academic credentials law school applicants, or modern failures in teaching.
The study documents that resources have been diverted (proportionally) from foundational and required courses to more academic and “boutique” courses. Some of this may be attributed to the increased number of law faculty members who hold advanced degrees in other fields, which may divert part of their teaching to courses with an affinity for their graduate training, rather than professional preparation."