Scott Brewer - Profile on Academia.edu (original) (raw)

Papers by Scott Brewer

Analogy and Exemplary Reasoning in Legal Discourse, 2017

A too common view of analogical arguments in law and in other domains holds that they necessarily... more A too common view of analogical arguments in law and in other domains holds that they necessarily lack the force of valid deductive argument and thus, by def inition, that they are defeasible forms of argument. Against this it is argued here that, properly understood, some analogical arguments, including analogical arguments in law, do have the force of valid deductive arguments, and that these arguments are indefeasible. Paradigms of such supposedly indefeasible arguments are an important part of this discussion.

First Among Equals: Abduction in Legal Argument from a Logocratic Point of View

New Essays on the Nature of Legal Reasoning

Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy by Analogy

Routledge, Jun 17, 2013

Agonophobia (Fear of Contest) in the Theory of Argument?: The Case of Gary Lawson's Evidence of the Law

Boston University Law Review, Dec 1, 2017

Evolution and revolution in theories of legal reasoning : nineteenth century through the present

Scientific Models of Legal Reasoning : Economics, Artificial Intelligence, and the Physical Sciences

Artificial Intelligence and Law, 2019

The Logocratic Method, and the Logocratic theory that underwrites it, provide a philosophical exp... more The Logocratic Method, and the Logocratic theory that underwrites it, provide a philosophical explanation of three purposes or goals that arguers have for their arguments: to make arguments that are internally strong (the premises follow from the conclusions, to a greater or lesser degree-greatest degree in valid deductive arguments), or that are dialectically strong (win in some forum of argument competition, as for example in litigation contests of plaintiffs or prosecutors on the one hand, and defendants, on the other), or that are rhetorically strong (effective at persuading a targeted audience). This article presents the basic terms and methods of Logocratic analysis and then uses a case study to illustrate the Logocratic explanation of arguments. Highlights of this explanation are: the use of a (non-moral) virtue (and vice) framework to explicate the three strengths and weaknesses of arguments that are of greatest interest to arguers in many contexts (including but not limited to the context of legal argument), the Logocratic explication of the structure of abduction generally and of legal abduction specifically, the concept of a system of arguments, and the concept of the dynamic interactive virtue (and vice) of arguments-a property of systems of arguments in which the system of arguments as a whole (for example, the set of several arguments typically offered by a plaintiff or by a defendant) is as virtuous (or vicious) as are the component arguments that comprise the system. This is especially important since, according to Logocratic theory (and as illustrated in detail in this paper), some arguments, such as abduction and analogical argument, are themselves comprised of different logical forms (for example, abduction always plays a role within analogical argument, and either deduction or defeasible modus ponens, always plays a role within legal abduction).

Precedents, Statutes, and Analysis of Legal Concepts

At least since plato and Aristotle, thinkers have pondered the relationship between philosophical... more 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.

Traversing Holmes's Path toward a Jurisprudence of Logical Form

The Legacy of Oliver Wendell Holmes, Jr

The life of the law is, and should be, logic suffused by experience and experience tempered by lo... more The life of the law is, and should be, logic suffused by experience and experience tempered by logic. That is the principal proposition I defend in this essay. It is now a commonplace that Holmes's declaration "The life of the law has not been logic: it has been experience" is, as Thomas Grey has said, the "central slogan of legal modernism.'" Holmes first offered it in 1880 in a review of C. C. Langdell's book on contracts,' and he repeated itprO.!1Jine.ntly at the opening of The Common Law. published in the same year, where it serves as part of an extended admonition about the limitations of "logic" in the best explanation of common law doctrines: The object of this book is to present a general view of the Common Law. To accomplish that task, other tools are needed besides logic. It is something to 'show that the consistency of a system requires a particular result, but it 'is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious; even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a hook, of mathematics. I refer to this basic thesis as Holmes's "anti-logic." The anti-logic thesis is not a passing fancy on Holmes's part. Rather, he maintained and repeated it (though not always in the same words) for at least twenty-five years, from the 1880 review of Langdell's book to his 19.05 dissent in Lochner v. New York, in which he declared: "[Gleneral propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise." The anti-logic thesis is, of course, also a major emphasis in his essay of The Path of the Law. I detail Holmes's anti-logic thesis in part I of this chapter and challenge it in several respects in part II.

Introduction: Choosing Sides in the "Racial Critiques" Debate

Harvard Law Review, 1990

[T]he sufferings he has undergone have left an indelible mark on the negro's soul, and a... more [T]he sufferings he has undergone have left an indelible mark on the negro's soul, and at the present stage he suffers from an inferiority complex which finds its compensation in a desire to imitate the white man and his ways; but I am convinced that in this direction there is ...

Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy

Harvard Law Review, 1996

... A. The Semantics of Defeasibility ..... ... Some of them, such as induction, deduction, and t... more ... A. The Semantics of Defeasibility ..... ... Some of them, such as induction, deduction, and the less well known form called "ab-duction," are often associated not with legal reasoning, but rather with reasoning in the demonstrative sciences (mathematics and logic ...

The Yale Law Journal, 1988

The recent jurisprudential "turn to interpretation" 1 reflects a growing awareness that if law is... more The recent jurisprudential "turn to interpretation" 1 reflects a growing awareness that if law is a seem-less web, the act of interpretive judgment is its filament. Scholars have offered a variety of explanatory models of the process of legal interpretation. The key concepts in the more influential theories-"interpretive strategies," interpretive communities," "fit," "value," "chain novels," and "disciplining rules" 2-are, to be sure, tools useful for the study of legal interpretation. But these theories remain at a relatively general level of analysis, not attempting to break down the interpretive process into small constituent analytic elements, and thus they sometimes miss important features of the interpretive process. The central goal of this Note is to identify the operations of "tropological inference," a special type of inference unique to the process of inter

The Yale Law Journal, 1998

and I am indebted to workshop participants for valuable comments on those versions.

Law, Probability and Risk, 2011

Legal analysis is dominated by legal arguments, and the assessment of any legal claim requires th... more 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.

Contents of the Series 1. Logic, Probability, and Presumptions in Legal Reasoning 2. Precedents, ... more Contents of the Series 1. Logic, Probability, and Presumptions in Legal Reasoning 2. Precedents, Statutes, and Analysis of Legal Concepts 3. Moral Theory and Legal Reasoning 4. Evolution and Revolution in Theories of Legal Reasoning: Nineteenth Century Through ...

When someone in his audience said, Convince me that logic is necessary, he answered: Do you wish ... more When someone in his audience said, Convince me that logic is necessary, he answered: Do you wish me to demonstrate this to you?-Yes.-Well, then, must I use a demonstrative argument?-And when the questioner had agreed to that, Epictetus asked him, How, then, will you know if I impose upon you?-As the man had no answer to give, Epictetus said: Do you see how you yourself admit that all this instruction is necessary, if, without it, you cannot so much as know whether it is necessary or not?

Harvard Law Review, 2007

I. INTRODUCTION I have read and pondered Judge Richard Posner's judicial opinions and scholar... more I. INTRODUCTION I have read and pondered Judge Richard Posner's judicial opinions and scholarship for many years. Over that time I have been nourished, informed, challenged, provoked, annoyed, angered, impressed, and delighted. I have been delighted, for example, to point out to students that Judge Posner (hereinafter Posner--for brevity and with all due respect), virtually alone at the time among Seventh Circuit judges, spotted a significant logical mistake in the way some of his colleagues had been interpreting the rule for "material alteration" offered in official comment 4 to section 2-207 of the Uniform Commercial Code (U.C.C.). Essentially, they misread a rule in comment 4 that has the form "if P then Q" as having the form "if Q then P." (1) Not only was this error an offense to, say, Quine, Frege, Peirce, and Aristotle, but it also made bad law, as Posner explained. (2) It is hard to get students to pay attention to this kind of detail--espec...