Page: 7 The force of the state is deployed to restrain the force of individuals.
Page: 7 Law is concerned with the allocation of responsibility, and you will from time to time need to argue with others about their responsibilities, as well as about yours.
Page: 10 sophistry
Page: 10 By making the weaker argument in this sense appear the stronger, lawyers or other sophists may subvert first principles, truth, or public policy.
Page: 10 Sophistry is thus ethically unappealing.
Page: 16 Lawyers break legal questions down into components, or elements, of a crime or of a claim, and then analyze each component separately.
Page: 17 human beings, more than we’d like to admit, reach conclusions first and analyze later.
Page: 18 there must be (i) a duty, (ii) a violation of that duty, (iii) causing (iv) harm (v) to a person owed the duty, (vi) where there is no defense such as necessity or contributory negligence.
Page: 18 Thus, legal analysis consists of (a) breaking down each legal rule into a list and (b) evaluating whether each condition is met so as to result in legal responsibility. Importantly, the elements are generally linked conjunctively; if
Page: 18 any condition is not satisfied, legal responsibility does not result.
Page: 18 Good legal drafting consists of clarity in expression of legal obligations, and legal obligations are always formulated as “if-then” statements.
Page: 19 (i) the alleged liar must speak, (ii) the speech must be false, (iii) the speaker must know that it is false, (iv) the false speech must be intended to hurt another, and (v) the false speech must actually hurt another.
Page: 20 perfidy of sophists.
Page: 21 there is a violation of a duty under contract or a tort, giving rise to a claim.
Page: 22 One of the best responses to any argument, of any kind, is simply to ask, “How do you know?”
Page: 22 Once we find a gap, we just need to attack it until the entire argument falls.
Page: 23 Where your arguments are this good, it is often strategically advisable to lay them out in detail, even though doing so gives your opponent a chance to respond.
Page: 23 you must put him to his proof.
Page: 23 ask why we should believe this unsupported proposition.
Page: 24 There are two types of knowledge that are important in law: knowledge of facts and knowledge of law.
Page: 25 Law that does not accept the possibility of diversity of values is, by definition, illiberal.
Page: 26 “Fragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, unprincipled, undisciplined feeling.”
Page: 31 hard-won protections of fundamental liberties and are established to protect the honest citizen
Page: 32 res judicata, as described in section 3.14: once a decision is made, it is final.
Page: 41 Or, the defendant might argue that the case is not the type of case that the plaintiff framed at all but a different kind of case.
Page: 42 the framing and reframing of a dispute is an arena in which legal creativity can be most effective and most valuable.
Page: 44 One of the most creative and valuable things a lawyer can do is to reframe the issues—
Page: 46 is the “lex specialis” principle, which holds that in the event of conflict between two rules, the more specific rule should be applied.
Page: 46 Sometimes the best defense is to go on the offensive.
Page: 54 Or it may be a requirement to enter into negotiations in good faith.
Page: 57 The burden of proof is a heuristic that says we will leave things as they are unless the person to whom the burden is allocated is able to prove that he has a right to a different determination.
Page: 58 the burden is generally on the plaintiff to prove his case by a “preponderance of the evidence.”
Page: 59 you can shift the burden of proof with a simple “how do you know”
Page: 59 “How do you know I’m wrong?”
Page: 59 If the question relates to your own skills or characteristics, you should bear the burden of proof.
Page: 61 Justice O’Connor said that “absent
Page: 61 some reason to believe that Congress intended otherwise,” the burden of proof should be “where it usually falls, upon the party seeking relief.”
Page: 63 Repose in this context is the idea that we are better off if we can rely on decisions that have been made previously without fear that they will be changed.
Page: 63 vexatious litigation.
Page: 66 I followed a legitimate process to arrive at this decision and your view was considered.
Page: 69 To the ordinary person, this is a problem; to the lawyer, it is an opportunity for advantage.
Page: 70 am sorry to report that this is often the realm of sophistry.
Page: 75 The parties might have been able to agree on the words, without agreeing on how they would be applied.
Page: 75 “same bed, different dreams,”
Page: 76 This concern requires us to distinguish between subjective intent and objective intent. By objective intent, we mean we can reasonably infer intent from objective evidence.
Page: 76 The danger of legislative history or working papers is that it is not always clear what we can learn from these records.
Page: 76 In this case, the subjective intent of Party A may indeed have been to include an arrangement for automatic escalation, but it is not by any means evident that Party B agreed to that arrangement.
Page: 87 There is incompleteness in the sense that the rules do not address all of the issues that can come up in relation to the matters addressed in the law or contract in the fullness of time.
Page: 91 Furthermore, the effet utile principle requires an assumption that each word is meaningful—that there is no unnecessary repetition or surplus. So it has unintended results if people are sloppy or like to repeat themselves.
Page: 93 it is not impossible to argue that the contract or law should be enforced as written or not enforced at all. And
Page: 95 lex specialis (lex specialis derogat legi generali): when faced with a conflict between rules, choose the one that applies more
Page: 95 specifically to the facts.
Page: 95 The assumption behind lex specialis is that the more specific provision was more tightly reasoned and more tightly tailored to the subject, compared to the less specific provision.
Page: 96 In both laws and contracts, so long as the draftsman is aware of lex specialis, it is appropriate to apply it.
Page: 97 We have two conflicting principles, so the more specialized one should take priority over the more general one.
Page: 98 Even more surprising, if a general category is expressed, and examples follow, the examples may have the effect of limiting the scope of the general category. This is the interpretive principle of ejusdem generis, and it
Page: 99 The ejusdem generis principle supports the child’s argument: the specification of examples tends to restrict the general category of which they are examples.
Page: 99 while “e.g.” means what follows are examples of a broader covered category. “E.g.” implies an incomplete list—that other things in the category are intended. So, “i.e.” allows an expressio unius argument, while “e.g.” blocks the expressio unius argument, as a somewhat less explicit alternative to saying “including, without limitation.”
Page: 103 Any ambiguity in this agreement should be resolved against the position of the person responsible for drafting
Page: 109 “A foolish consistency is the hobgoblin of little minds.”
Page: 115 Occam’s razor, which suggests that the simplest explanation of a phenomenon—the one that requires the fewest assumptions or conditions—is likely to be the
Page: 115 correct one. Occam’s razor is not a firm rule of logic, but a guide to decision-making under uncertainty.
Page: 128 Where your formal argument is weak—where the formal analysis of the facts does not support your claim—it may be attractive to emphasize other facts that are informally appealing but not part of the formal claim. When
Page: 141 You will no doubt avoid using sophistry to make the weaker argument appear the stronger, but your opponent may not be so principled.
Page: 141 (is that really so? how do you know?)
Page: 142 Non sequitur is a term for a whole class of circumstances where the asserted predicate does not indicate the desired conclusion,
Page: 143 an irrelevancy with the focus on the speaker’s credentials.
Page: 145 Cum hoc ergo propter hoc is when two things occur together and one is assumed to cause the other. Post hoc ergo propter hoc is when the alleged cause precedes the alleged effect.
Page: 147 should not seek out complicated explanations when simple ones are available,
Page: 150 It is sometimes possible to sneak an assumption into an argument by embedding the assumption in a question or in an unrelated statement.
Page: 168 extensional pruning.
Page: 168 they are also expert at using words with ambiguity.
Page: 170 “faintest ink over sharpest memory.”
Page: 171 “Pessimism is only the name that men of weak nerve give to wisdom.”
Page: 172 Where there is a weak link of assumption without knowledge, the lawyer will exert pressure.
Page: 172 an experienced lawyer will never lose sight of the crucial importance of maintaining the judge’s trust in his credibility and that of his witnesses.
Page: 174 The best attorneys—the cream of the persuasive crop—also recognize that the credibility of the legal advocate is itself crucially important.
Page: 174 lying to win the argument in which you are currently engaged is not worth the price of losing one’s reputation for truthfulness.