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Introduction
Most students think the keys to success in the classroom lie in taking and memorizing
lecture notes, as well as reading a textbook and committing it to memory. Yet in order to
truly learn from a course in business law, one needs to be able to think critically about the
American legal system. Critical-thinking techniques, in addition to being applicable to
legal arguments, are also important to virtually all disciplines. Critical thinking involves
making judgments and decisions based on information from different sources.
In this Handbook, designed to accompany all business law and legal environment
texts written by Roger LeRoy Miller, Gaylord A. Jentz, and Frank B. Cross, we
present strategies in critical thinking that will allow you to truly learn the principles that
you will be faced with in all business law and legal environment texts written by Miller,
Jentz, and Cross. The techniques described in this booklet will help you separate reality
from rhetoric in the information that comes from television, radio, newspapers, and any
other sources of legal information. Throughout the pages that follow, we use examples
that relate specifically to the American legal system. You should be able, nonetheless, to
use the methodology of critical thinking presented here in all of your courses as well as in
your day-to-day activities.
1. The evidence
2. The specificity of the argument: is it too general?
3. Is there any alternative explanation (observational equivalence)?
Alternative Explanations
Many arguments are presented that sound logically correct and seem to have evidence to
support them. The problem, though, is that alternative explanations may be available. In
the theory of scientific methodology, when such a situation occurs, we label it a case of
observationally equivalent hypotheses. Take an example that is found virtually every day
in the newspaper: What happened to the stock market yesterday? Almost every business
page or every radio or television news commentator has something to say about what
happened to the price of stocks yesterday. If stock prices went down yesterday, business
commentators will cite various reasonsthe dollar weakened, there was a threat of war
in the Middle East, there was a threat of the steel unions going on strike, or something
else happened. If stock prices went up yesterday, commentators might say the latest index
of inflation showed it to be falling, the price of oil went down, or the president got over a
cold. Neither the explanations of the evidence presented, nor the supporting arguments,
are observationally distinguishable from those of any other explanation offered. There are
many alternative explanations of why stock prices went up or down yesterday. Merely
stating something that sounds logical means absolutely nothing.
Explaining why stock prices went up or down yesterday involves much more than
stating something that sounds plausible. There are at least 100 plausible explanations of
why stocks changed price yesterday. Only by focusing on a limited number of
explanations, testing those explanations scientifically, and examining much evidence can
we even hope to come up with a hypothesis that is not observationally equivalent to a
dozen other hypotheses.
In the practice of law there will always be an argument that will sound logically
correct. While this argument may make sense, there is always a counter-argument that
may prove otherwise. This is precisely the reasoning of the theory of the adversarial
procedure, by which both parties present their legally correct argument and then the
case is decided. If this were not the situation, the American judicial process would be
futile, in that there would be no room for interpretation. If an individual were to read the
brief of the attorney representing client A, it is quite likely that it would sound logically
correct. In contrast, if one were to read the opposing partys brief, the same situation
would arise. The reason for this is that the attorney will represent the case utilizing facts
in the light most favorable to his or her client. While the argument may in fact sound
logically correct, certain relevant factors probably could have been omitted or extended
tenuously to seem helpful to the facts of the case.
Arguments do not end at the conclusion of the trial when the verdict is announced,
but may continue throughout the appeals process as cases, or parts of cases, are
overturned. We have observed Supreme Court decisions in which cases that appear to be
similar often end up with different results. On many occasions, the Supreme Court has
altered its views on a previous case, and made a ruling that was inconsistent with its prior
decision. The reason is that, while superficially the cases may appear similar in nature,
evidence that changes the outcome has appeared. In other words, there are other logically
correct arguments that bring in new evidence not present in the past.
What may appear to be a logically correct argument will not necessarily provide
the correct answer, because all factors must be taken into account. Producing
encompassing, and therefore conclusive, evidence remains a rare occurrence.
Rule 6: Go Beyond the Obvious: Discover What Variables in the Evidence Changed
the Outcome of the Case
To expand the example from above, if you want to find out why the local prosecutor
happens to be more successful in one courtroom than in another, go beyond simple
correlations and examine the underlying forces that actually determine the rate of
conviction.
First of all, one might try to find out what types of cases are being held in each
courtroom. Contrary to the laypersons belief, courtrooms are usually designated to hear
certain types of cases. The reasoning is that the judge presiding over the case should have
some knowledge of the subject matter that reaches beyond the briefs of the attorneys. If
the prosecutor in one courtroom is trying cases related to driving while under the
influence of alcohol, and the prosecutor is handling cases relating to murder in another, it
may have some influence on the conviction rate if the prosecutor has less experience with
one type of case than another.
Another factor that should be analyzed is whether the judge in the courtroom is
appointed or elected, and, if elected, is he or she running for reelection sometime in the
near future. Unfortunately, elected judges may in fact be playing in the game of politics.
This means that the particular judge may be more willing to conform to the communitys
moral beliefs on election days than on non-election days, and therefore this would likely
influence the conviction rate of the prosecutor.
A third factor, which should not be dismissed, is whether the particular issue
being decided is receiving a large amount of publicity through the media. It was not too
long ago that officers, prosecutors, and judges often turned their backs on cases involving
driving while intoxicated. Nevertheless, in recent years, this has become a hot issue and
has received an incredible amount of publicity. This has led to prosecution and tougher
enforcement of the D.U.I. laws.
Given that the court system has a limited number of resources available to enforce
the laws and punish those who break them, the allocation of these resources is shifted
from issue to issue, and the hot issue is likely to be strictly enforced. Therefore, if the
prosecutor is handling cases with issues that at the time are receiving a considerable
amount of media attention, and there is public outcry for the enforcement of certain laws,
his or her conviction rate will most likely be affected.
Finally, there may be political implications to the trying of cases. In your text
there is a specific chapter on antitrust law. There is a discussion of the effect that antitrust
laws have in limiting the acquisition of one company by another. Nevertheless, the rate at
which the Federal Trade Commission will enforce these laws depends on the political
mood in the nation. There was a time when the F.T.C. rigorously fought to disallow the
mergers or acquisitions of companies when these controlled a significant portion of the
market. During the Reagan years, however, it appeared that the F.T. C. was tolerating
such acquisitions and mergers more than it had done previously. Therefore, if the political
climate is leaning towards the enforcement or non-enforcement of certain laws, that
climate will affect cases. Back to the example, if the political climate was to vigorously
prosecute drug-related murders, than the prosecutors rate of conviction in that area
would probably be affected.
We see that in reality an oral contract can only be enforced under very limited
circumstances. Therefore, if an oral contract were to fail within one of the five exceptions
mentioned above, it would probably not be enforced.
Your job as a critical thinker is constantly to question the arguments, the evidence,
casual theories, correlations, generalizations, and all-encompassing statements about how
things work.
Conclusion
In conclusion, the critical thinker is the student who reaches beyond what is stated by the
instructor in class. Critical thinking is in reality the only path that can, and should, be
taken by the student in order to properly understand the material presented in any
business law and legal environment text written by Miller, Jentz, and Cross. The student
must analyze both sides of the argument. He or she must question not only the arguments
made by the instructor and the textbook, but hose made by himself or herself. One must
reach beyond the decision of the case by searching all aspects of the litigation. Look at
the arguments being made, the political arena surrounding the lawsuit, and the morals of
the society at that particular time. It is essential to delve into the arguments being made
by each party of the suit, and understand their respective points of view. Distinguish
between the factual arguments and the emotional ones. Weed out prospective arguments
and go beyond the obvious. The critical thinker will not merely accept the decision of the
case, but will also attempt to pierce the judgment and poke holes in the argument. It is
necessary to question the justification given in the class, as well as those arguments made
in your text.
By becoming a critical thinker, you will not only learn the material discussed in
the textbook and in class, in a whole new dimension, but you will also develop an entirely
new understanding of the cases in your text.
Such preparations shall be made as will completely obscure all Federal buildings and
non-Federal buildings occupied by the Federal government during an air raid for any period of
time from visibility by reason of internal or external illumination.
When President Franklin Roosevelt was told that government employees could not
decipher the meaning of the memo, he did his best to clarify the message: he informed his
aide to Tell them, that in buildings where they have to keep the world going, to put
something across the windows. Although FDRs prose in this instance was not
memorable, it did serve to communicate the message. The point is, communication comes
first; and this can best be achieved by using your own words.
Also, avoid using too many quotations. If you can paraphrase in your own words
the content of a quotation just as effectively, do so. Quotations interrupt the flow of your
text. Furthermore, your reader is primarily interested not in what your sources know but
in what you have learned from them and how they relate to your thesis. Of course, if a
quotation is particularly apt or illuminating of the point you are making, use it. A
particularly apt quotation in the context of this paragraph is the following, from Ralph
Waldo Emerson: I hate quotations. Tell me what you know.
Remember to identify your sources to the reader. If you use a direct quotation
from an author, be sure to give the appropriate citation in the stylefootnote, endnote or
in-text citationpreferred by your instructor. If you discuss a theory or the results
produced by another scholar, provide a citation to that work. Not giving credit for ideas
or words is academic dishonesty and, if extreme, is considered plagiarism.
1. Modifiers that are not essential for accuracy or clarity. Too many adjectives and
adverbs can hide the working words (nouns and verbs) of your sentences.
2. Repetitious sentences or sections. Dont bore your reader with overstatements.
3. Unnecessary table or illustrations. If you have included tables or illustrations in your
paper, consider whether they are really necessary. Could you summarize in words the
same information just as well?
4. Long, complex sentences. Use twoor moreshorter sentences instead.
5. Extraneous phrases, such as I might add that or it should be pointed out that or it
is important to note that.
6. Any irrelevant statement or information.