The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: March, 2010

Logical fallacies

Logic is very important to law. Depending on who you ask it’s all there is to law. A problem that lawyers have is that they have somewhat given up the advantage of surprise the moment they say they’re a lawyer – I don’t know how effective emotive pleas are if they come from someone you know is being paid to say it regardless of their personal feelings. I think it takes the shine off it slightly. That leaves you with logical argument to persuade people with.

There are a lot of other areas where logic is also extremely important. Causation in science is probably the biggest example in normal life. Homoeopathy is getting a lot of attention lately as the low-hanging fruit of implausible alternative therapies and a lot is being made of the niggling issue that bruises which go away may not go away because of the infinitesimally small amount of water in which arsenic was dissolved but then diluted away you drank. The sceptic community is very vocal about people who use this sort of thing as proof that homoeopathy can cure everything.

“I feel it worked for me, therefore it works for everyone” is not good logic, it’s technically called “inductive logic” which is generally fine as long as you question your presumptions (eg, that it actually did work for you) and don’t rely on it too much. Of course, if your entire argument is extrapolating a major premise from a minor premise, stop and get a new argument. It probably won’t stand up very well. You can get away with it if no one challenges it but the problem with legal disputes is that someone generally does.

Theskepticguide.org have compiled a list of 20 of the most common logical fallacies that they experience. It’s really worth using them as cautionary tales so that you don’t end up getting stuck with an argument that cannot withstand scrutiny.

Ad hominem

An ad hominem argument is any that attempts to counter anothers claims or conclusions by attacking the person, rather than addressing the argument itself. True believers will often commit this fallacy by countering the arguments of skeptics by stating that skeptics are closed minded. Skeptics, on the other hand, may fall into the trap of dismissing the claims of UFO believers, for example, by stating that people who believe in UFO’s are crazy or stupid.

This is very common in normal life and I’ve fallen for this one myself – it’s very tempting to spend your time as a respondent proving that a claimant is a bad person who deserved what happens to them when actually what you need to do is look at what you’re required to prove under applicable law.

Slippery Slope

This logical fallacy is the argument that a position is not consistent or tenable because accepting the position means that the extreme of the position must also be accepted. But moderate positions do not necessarily lead down the slippery slope to the extreme.

Although this is a logical fallacy it is a perfectly acceptable policy argument. It is often within a court’s discretion to consider policy arguments, but I wouldn’t feel comfortable actually relying on it to any great extent just because it’s so vulnerable to questions like “yeah, but what if we don’t immediately go out and kill all the children?”. There’s a lot you can say in an essay that a court might do that a court might never actually do.

Tautology

tautology is an argument that utilizes circular reasoning, which means that the conclusion is also its own premise. The structure of such arguments is A=B therefore A=B, although the premise and conclusion might be formulated differently so it is not immediately apparent as such. For example, saying that therapeutic touch works because it manipulates the life force is a tautology because the definition of therapeutic touch is the alleged manipulation (without touching) of the life force.

I actually really disagree with this one, I think what they mean to say here is just “circular argument”. If you really can base your argument on a tautology you’re actually on excellent logical ground. A tautology is something that is necessarily true. A circular argument is terrible, unhelpful to you and should always be avoided but if you rely on something that logically has to be true (or the universe doesn’t work) you’re not going to be wrong about it. For example “an armed robber is a robber who has a weapon” is a tautology, which means that if you can prove (to the standard of proof) the two points of 1) he was a robber and 2) he had a weapon he must be an armed robber, if you’re prosecuting him for armed robbery this is exactly what you’re there to prove. I find it really helps me to work out what legal issues are at question if I actively try, as much as possible, to reduce all logical questions to tautologies.

Tu quoque

Literally, you too. This is an attempt to justify wrong action because someone else also does it. “My evidence may be invalid, but so is yours.”

As far as I’m concerned as a bright eyed, idealistic LLB student who sees the world in strictly black and white this is the worst thing ever. It turns out, surprisingly, that bad things can happen to bad people. There’s simply no good reason why someone who did something wrong shouldn’t be able to get legal remedy for wrongs done to them.

This is why, for example, Napier v Scottish Ministers was right to grant Article 3 relief to a prisoner who was held in inhuman conditions even though he was in jail (if I recall correctly he was even awaiting trial at that point – merely accused). There’s no good reason to breach the human rights of people held in jail. It doesn’t work to say “well, they’re bad so you can be bad to them.” That just doesn’t follow – it’s a tu quoque fallacy.

Unstated Major Premise

This fallacy occurs when one makes an argument which assumes a premise which is not explicitly stated. For example, arguing that we should label food products with their cholesterol content because Americans have high cholesterol assumes that: 1) cholesterol in food causes high serum cholesterol; 2) labeling will reduce consumption of cholesterol; and 3) that having a high serum cholesterol is unhealthy. This fallacy is also sometimes called begging the question.

This is an important one – it’s so important to challenge your own presumptions when you’re looking at any legal problem. I think the best example I ever had was a time I was (too) casually reading a hypothetical scenario and I assumed the guy did it and actually he hadn’t. As you might guess this had an effect on what my answer ended up being. Law school essays get around this, through IRAC, by very much encouraging you to spell everything out.

They have a much longer list at the above link that’s worth checking out.

But, on a personal note, the big one that annoys me more for reading comprehension reasons than any logical issues is:

Begging the question

(So annoying I’ve mentioned it twice)

This does not mean you need to immediately state the question that you think needs asked. When it says “beg” it doesn’t actually ask for the question, it just means someone is assuming a principle. It means that the other person hasn’t asked a question they should have asked, not that you need to suggest one.

“That begs the question – what colour is my bike?” is a pet peeve of mine. It just means that someone assumes your bike is yellow when they should investigate their foundational principles. It doesn’t mean you should tell them they should ask you what colour your bike is. Just say either “you’re begging the question there” or “you need to ask [x]” but avoid saying both.

H/T to Crispian Jago.

You might also want to check out the gripping blog of Diane Levin who every month, like clockwork, debunks a logical fallacy. I’ve covered it on the blog before and it’s excellent.

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The workflow

University is pretty much an industrialised way to exchange essays for potentially higher earnings in the future. There’s really not much more critical to the orthodox university experience than handing your essays in.

I imagine the general way people do this is they open a new document in Microsoft Word before alternately staring at it, typing words into it and checking the word count. They then sort their footnotes and bibliography, run it through TurnItIn or similar and then either print it out or submit it electronically. That way works but there’s so many other ways to do it.

I think Word is an amazing program, it gets a hard time but it basically does everything to text that you, and pretty much anyone else, could ever want to do to text. It’s such a substantial program there are many, many courses and books purely on the various intricacies of it. I do encourage everyone to do these, it helps to know how Word works. It’s so much more than it seems at first glance.

If you want to go beyond just writing all your stuff in Word the workflow you’ll come up with is one of the most individual decisions you’ll make. You’ll probably use a collection of various things.

My favourite tools for writing are:

  1. Plain text
  2. Text expansion,
  3. Templates,
  4. Backup and,
  5. Word

Plain text

I don’t think I really need Word to write my essays. I type just about everything I write into Mousepad, (even things on blogs in case my browser crashes). It’s a lightweight plain text editor – just like Notepad. You type your words into it and nothing else. The biggest change is that I’ve started to use the Harvard citing model because Mousepad doesn’t support footnotes. I check my spelling with Aspell and check word counts with wc.

Text expansion

Is a surprising feature I never thought I needed. I first came across the concept through Low End Mac, where one of the principal writers has serious joint problems which make typing uncomfortable. He uses text expansion to let him minimise the amount of typing he needs to on health grounds. I use it for various things, I have some commonly typed terms arranged to expand – for example “pomo” becomes “postmodernism”- but the big thing I use it for is dynamic scripts. One of the big ones is that it will change $date into the current date and time which makes it a lot easier to type the date for record keeping purposes. I use Autokey for this. It’s Linux only but it’s the spirtual successor of AutoHotKey which runs on Windows.

Templates

One of the better features of many operating systems is that you can create new documents of various types by right clicking in the file browser. Ubuntu takes this as far as I’ve seen and lets you create a new copy of anything in your ~/Templates/ directory. For example I use a template for blog posts that looks a lot like this:

Start:
Title:
Word count:
Tags:
Category:
Posted:
Link:

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This gives me all the details I need for a blog post in one file and the fingerprint I use to track when/where my posts get scraped because I keep forgetting to put it in. Having it there gives me a checklist to work through. I just do “right click > create document > blog post” and fill in the fields so they’re there for WordPress when I come to post it. I also have another for essays which includes things like the deadline, the question, the word limit and so on. The idea is to make a checklist for things I need to remember.

Backup

Backup is utterly essential, you just can’t afford to lose your work at any point and it’s really easily done. I’ve found that Flashbake is good for both backup and versioning. The creator explains it is,

seamless source control tool for ordinary people. Automated backup is nice unless you have files for which you want to view an incremental history. Source control is great for that history but most tools expect the author to manually commit their changes along the way. A seamless source control solution combines the convenience of automated back up with the power of source version control.

I’ve set it to save the changes I’ve made to my files every 15 minutes and these backups are copied to my Dropbox account. It’s a bit like the Time Machine backup system in new editions of Mac OS X in that it’s both backup and versioning, and it’s smart enough to check if the file actually has changed before it backs it up. You probably don’t need versioning but it’s the sort of feature that you are not going to regret having if you later find out you need it.

Word

I have a copy of Word 2007 installed on this computer which I run using WINE. I’ve never really got it to work brilliantly well but I don’t need to do very much in Word. After I’ve written the text in Mousepad I copy and paste it into a Word document and convert the Harvard citations into footnotes. I can then submit it like everyone else.

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Do you have any evidence for that?

Apparently mephedrone is deadly and we should ban it. Apparently I know that because one person possibly might have died of it. Way, way out in front of this is lightning, donkeys, your bath, driving and so on. Stalin famously insisted that all intelligence he was given was to be corroborated by at least one other, independent source. This is a great way to avoid misinformation tainting your decisions and, despite being a murderous despot, this was a fairly good idea.

I believe in evidence based policy making, it’s why I was so pleased that the Science and Technology Committee re-started their Evidence Checks. These are not checks that the thing being investigated works or not, just that the government policy is supported by evidence. It comes down to wanting to reasonably trust the state to spend their money on things that work.

The problem with banning something because it possibly, maybe killed one person is that you’re banning something based on purely anecdotal evidence. If you don’t want homoepathy on the NHS because there’s no reliable evidence for it, then why would you want drugs banned without similar evidentiary support? We’re not quite as crazy about drug offences as the USA but we’re not a million miles off, we need a better way to pick what substances we’re going to toss people in jail for than “I read about it in the Daily Mail.”

On a similar note, the EU has decided to require that producers of “superfoods” prove what they say they can do. This seems entirely reasonable – if you want to sell me white veal on the basis that it will make cancerous growths sprout legs and walk out of my body I don’t see why you shouldn’t have to prove that. The producers could don’t have to say it’s a superfood – they could always say “buy it just because it’s tasty.” Naturally the superfood producers think this is ridiculous and they shouldn’t have to be held to the same standard as drug companies, presumably because they cure illnesses in entirely different ways. It seems to be a case of food producers wanting to make the sort of claims that pharmaceuticals do without needing to put the work in first.

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New theme

I’ve decided to take pity on my failing eyesight by switching to a theme with bigger text. The previous style, Benevolence, let me include a photo I’d taken of the River Clyde in the header but it only had a narrow column for text. I thought this gave the blog a suitably Glaswegian theme and I do miss that in the new theme.

On the other hand, it’s big and it holds the words well and that’s really what I’m looking for in a blog theme.

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Court of Appeal rules no seatbelt is not contributory negligence

Law Actually has covered the decision of the Court of Appeal that a teenager left with brain damage after a crash was not contributorily negligent in his injuries.

This is a case which it seems immediately apparent is a bit strange – the victim was in a car being driven (by someone else) at more than twice the speed limit, while not wearing a seatbelt and even carrying a passenger on his knee down a country road. It seems pretty inevitable that something would go wrong with that setup, yet it wasn’t the victim’s fault that he got hurt (arguably, in a but for sense).

There are times when the victim, though injured by someone else, is not totally blameless in his actions. This creates situations where people who are quite obviously at fault can win delicts against other people, which can seem a little unjust. One way of dealing with this is to subtract a portion of the damages payout to account for their contribution to the injury.

Contribution is one of the most important parts of many cases – I recently participated in an excellent mock employment tribunal training session very generously run by a commercial firm in the city where the employer’s poor dismissal procedure was saved by a 100% contribution because of the employee’s actions. It’s a hollow victory if you beat someone in court but don’t get any money.

However if you act negligently but don’t, provably, contribute to your injury (like here) you can escape the contribution. Your contribution to your injury is a question of fact and it seems that expert evidence couldn’t make the link.

However Michael, and I have to agree with him here, points out that there are massive policy implications in this case. I suspect that the whole case came down to just about two policy decisions – do you support a seriously injured person who needs to finance long term care (hence the court action) or do you make a statement about seatbelt safety. Showing that hard cases make bad law it seems difficult to take a paternalistic stance when the claimant is quite as vulnerable as he is in this case. I don’t think that’s a suitable reason to decide either way and I don’t think that’s what the court used – since the necessary causal link was unproven – but it makes it emotive nonetheless.

Safety devices in vehicles is quite a difficult area – there are some occasions where, for example wearing a bike helmet actually makes some injuries worse and generally failing to land on your head negates the benefit in wearing a helmet at all. The Libertarians don’t believe that it’s even justifiable that the state should make a policy of using safety devices at all since it’s personal choice. I think that there are a lot of reasons that someone would or wouldn’t wear a seatbelt and I question how much this case, an appellate court upholding that a teenager with severe brain damage should get the full damages, will really influence teenagers to drive dangerously or for people to not wear a seatbelt.

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Do we need an (elected) House of Lords?

The House of Lords is a curious piece of constitutional framework but I think it’s better than the alternative. I don’t like that I have an MSP, an MP, an MEP and a couple of local councils (I live in one council area while I work and study in another). I think there has to be one or two too many cooks in that equation. I’ve got a funny feeling none of them particularly listen to me on the future state of the world and therefore do I really need 5 elected bodies to not particularly listen to my views? Do I need another?

The idea that the House of Lords should be elected is built on sound ideological foundations – democracy is good. I think it really is good, I just don’t see why people need multiple identical elected representatives to represent them. I think, if the second house will be made up by people voted for by the same people and arranged in the same political parties who will decide along party lines on the same legislation, this only happens because we assume we need a second house at all. Why would we? It’s exactly the same as the lower house.

I don’t want an elected House of Lords, I want a differently constituted upper house or I want us to save a bit of money by getting rid of it entirely. The whole point of the House of Lords is that it’s supposed to be able to resist the hue and cry of the masses and look at things objectively, the whole point of the House of Commons is that it’s supposed to listen to the voters.

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Rorschach Blot

Scott Greenfield, the old curmudgeon that he is, has posted a blog post on the nerve of youngsters these days. I never really like reading about the Slackoisie – just because I have a nagging sense that I may fall under the umbrella but he does have a fair point.

The Slackoisie is a fairly specific term for a made up, blawgosphere word. It’s not a generational thing, it’s a personality thing. I think the biggest issue is the importance you attach to your opinion – in that how critical it is that others agree with it. I’d think it’s a very human thing to say “how don’t you agree with me? I’m right” but that’s why I suspect I’m the sort of person that Greenfield is discussing.

To relate the problem of relying on opinions in law to law the way to write a good law essay is, surprisingly, using lots of law. However law does not come from your opinions, it comes from other people’s opinions. My mooting tutor memorably advised the society that the ideal submission should have you regretfully explaining that, try as you might, there is simply no other way to read the previous decisions other than to benefit your side. It’s not your opinion, it’s the law. Basically an academic law degree is all about learning to wield authoritative opinions to accomplish what you want in life. It’s not the sort of thing that really strong opinions would like, I’d have thought, but there you go.

He posts a litmus test – an email exchange between a student and a professor at NYU. I’m going to call it a Rorschach Blot – it’s not a question you answer, what’s important is what you make of it.

It involves a student ringing up to complain about being ejected from the class because he or she was an hour late and this isn’t a bad thing because he was actually just trying out lots of different classes that evening and that was why he was late getting there. The professor in turn clarifies that the student was jumping between multiple classes with the intention of finding one that he liked.

The professor did not seem to be very impressed by this, he actually tells the student to pull himself together, it looks a little like this:

Sent: Tuesday, February 9, 2010 7:15:11 PM GMT -08:00 US/Canada Pacific Subject: Brand Strategy FeedbackProf. Galloway,

I would like to discuss a matter with you that bothered me. Yesterday evening I entered your 6pm Brand Strategy class approximately 1 hour late. As I entered the room, you quickly dismissed me, saying that I would need to leave and come back to the next class. After speaking with several students who are taking your class, they explained that you have a policy stating that students who arrive more than 15 minutes late will not be admitted to class.

As of yesterday evening, I was interested in three different Monday night classes that all occurred simultaneously. In order to decide which class to select, my plan for the evening was to sample all three and see which one I like most. Since I had never taken your class, I was unaware of your class policy. I was disappointed that you dismissed me from class considering (1) there is no way I could have been aware of your policy and (2) considering that it was the first day of evening classes and I arrived 1 hour late (not a few minutes), it was more probable that my tardiness was due to my desire to sample different classes rather than sheer complacency.

I have already registered for another class but I just wanted to be open and provide my opinion on the matter.

Regards,
xxxx


xxxx
MBA 2010 Candidate
NYU Stern School of Business
xxxx.nyu.edu
xxx-xxx-xxxx

The professor’s reply:

From: To: “xxxx” Sent: Tuesday, February 9, 2010 9:34:02 PM GMT -08:00 US/Canada Pacific Subject: Re: Brand Strategy Feedbackxxxx:

Thanks for the feedback. I, too, would like to offer some feedback.

Just so I’ve got this straight…you started in one class, left 15-20 minutes into it (stood up, walked out mid-lecture), went to another class (walked in 20 minutes late), left that class (again, presumably, in the middle of the lecture), and then came to my class. At that point (walking in an hour late) I asked you to come to the next class which “bothered” you.

Correct?

You state that, having not taken my class, it would be impossible to know our policy of not allowing people to walk in an hour late. Most risk analysis offers that in the face of substantial uncertainty, you opt for the more conservative path or hedge your bet (e.g., do not show up an hour late until you know the professor has an explicit policy for tolerating disrespectful behavior, check with the TA before class, etc.). I hope the lottery winner that is your recently crowned Monday evening Professor is teaching Judgement and Decision Making or Critical Thinking.

In addition, your logic effectively means you cannot be held accountable for any code of conduct before taking a class. For the record, we also have no stated policy against bursting into show tunes in the middle of class, urinating on desks or taking that revolutionary hair removal system for a spin. However, xxxx, there is a baseline level of decorum (i.e., manners) that we expect of grown men and women who the admissions department have deemed tomorrow’s business leaders.

xxxx, let me be more serious for a moment. I do not know you, will not know you and have no real affinity or animosity for you. You are an anonymous student who is now regretting the send button on his laptop. It’s with this context I hope you register pause…REAL pause xxxx and take to heart what I am about to tell you:

xxxx, get your shit together.

Getting a good job, working long hours, keeping your skills relevant, navigating the politics of an organization, finding a live/work balance…these are all really hard, xxxx. In contrast, respecting institutions, having manners, demonstrating a level of humility…these are all (relatively) easy. Get the easy stuff right xxxx. In and of themselves they will not make you successful. However, not possessing them will hold you back and you will not achieve your potential which, by virtue of you being admitted to Stern, you must have in spades. It’s not too late xxxx…

Again, thanks for the feedback.

Professor Galloway

I actually think the professor is right to tell the postgraduate student that he can’t wander into classes an hour late. I think he’s really right to point out that you want to get the easy stuff right. I also think that the reason people are seeing this as an incredibly snarky email is that it is an incredibly snarky email, it apparently has to be. “Again, thanks for the feedback” concludes the lecturer, not (mainly) because he’s being snarky but because the student actually was giving him feedback on his performance.

And that’s just totally crazy.