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Argument by Analogy in the Justification of Legal Decisions that are based on Precedent Marie-Claire Bovet Student ID: 10020314 Email: marieclairebovet@icloud.com Phone no.: 06 36 30 44 70 Address: Delftstraat 52-416 2015 BM HAARLEM

Module: Master Thesis

Program: Communication and Information: Discourse and Argumentation Studies Supervisor: Mw. Dr. C. (Corina) Andone

Email: c.andone@uva.nl

Second reader: Dr. F. (Francisca) Snoeck-Henkemans Email: f.snoeckhenkemans@uva.nl

Final version: August 14th, 2016

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Table of Contents

Section 1 - Introduction: ……….. p. 3 Section 2 - Theoretical background of analogy argumentation in the legal context: .… p. 8 Section 3 - Boy Scouts of America v. Dale: ………..… p. 21 Section 4 - Evaluation of the analogy argumentation in the case study: ………. p. 31 Section 5 - Proposal for development of evaluation criteria for analogy argumentation in the legal context: ……….. p. 53 Section 6 - Conclusion: results and challenges: ………. p. 58 List of literature: ……… p. 60 Appendix: ………..…… p. 65

List of Tables

Table 1 - Segal-Cover Scores of the Individual Justices ……….…….. p. 24 Table 2 - Authorship per type and per justice in June (workload) ………. p. 28 Table 3 - Distribution of authorship per justice over the October 1999 term ………….. p. 29

List of Figures

Fig. 1 - Analogy Argumentation v. Extensive Interpretation: ……….. p. 9 Fig. 2 - Answering Critical Questions in a Monologue: ………..…. p. 12 Fig. 3 - The First Type of Analogy Argumentation: ………..…… p. 14 Fig. 4 - The Abstract Story Scheme: ………..…… p. 18 Fig. 5 - The Majority Opinion’s Argumentation Structure: ………. p. 33-34 Fig. 6 - The Minority Opinion’s Argumentation Structure: ………. p. 34-35 Fig. 7 - The Majority Opinion’s Symptomatic Pattern for Roberts: ………..… p. 41 Fig. 8 - The Majority Opinion’s Symptomatic Argumentation for Roberts: ……….. p. 42 Fig. 9 - The Majority Opinion’s Disanalogy Pattern for Roberts: ……….. p. 42 Fig. 10 - The Minority Opinion’s Symptomatic Argumentation for Roberts: ……… p. 43 Fig. 11 - The Minority Opinion’s Analogy Argumentation for Roberts: ………. p. 43 Fig. 12 - The Majority Opinion’s Analogy Pattern for Hurley: ……… p. 44 Fig. 13 - The Minority Opinion’s Analogy Pattern for Hurley: ……….. p. 44-45 Fig. 14 - Proposed Pattern for Legal Decisions based on Precedent: ..……….. p. 54

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Section 1 - Introduction

In a discussion, we often find ourselves agreeing with one party. But then, when further elaboration is given by the opposite party, their case makes sense too. This is exactly what will happen if one reads the case syllabus of Boy Scouts of America v. Dale. The reasoning in both the majority and minority opinion seems reasonable. What can account for these instances that make us scratch our heads?

The United States’ Supreme Court (court) is burdened with the administration of justice in accordance with the rule of law and the safeguarding of the Constitution against

congressional actions (the United States Constitution article III & Judicial Act of 1925). The latter part of this institutional goal is defined as “constitutional review” (Marbury v. Madison) and is largely dependent on a process of interpretation of the law in such hard cases, (when the applicability of the law is disputed) by the nine individual justices that the court consists of.

According to Canale and Tuzet (2014: 229-231) interpretation is necessary when a matter that is brought to the court concerns either a borderline case (i.e. the legal rule that is under consideration is vague as to whether it applies to this specific case) or concerns a gap in the legal system (i.e. no legal rule directly applies). It might also be the case that the specific matter unveils a conflict between a state and a federal law, or it brings to light that a congressional act is in conflict with the Constitution (Canale & Tuzet, 2014: 229-231).

Interpretation is a process that is inherently subjective, and is guided by each justice’s political preference, legal philosophy, and policy goals (Schuetz, 2011: 150). This subjectivity is no secret. These three concepts are the very basis upon each individual justice was appointed for its position. The executive branch of the U.S. government (i.e. the president) is responsible for proposing a candidate justice to fill a vacancy when it appears. Traditionally, the political preference of the candidate is in line with that of the person appointing him (Segal & Cover, 1989: 557-565). The senate, then, will confirm the candidate by vote. They cannot pick a candidate themselves (United States Constitution, article II, section 2). Chances to change the composition of the court are very rare. Each justice is appointed for a period “during good behaviour,” which in practice means for life (United States Constitution, article III). This means that vacancies appear only after one of the nine justices either retires or dies. Appointment during “good behaviour” and on the basis of their political preference, legal philosophy, and policy goals carries with it the implicit commitment to act according to these traits after being installed in office.

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So, the political preference of each individual justice is directly related to the president’s preference at the time of appointment. This, of course, is more complicated than simply the political party the justice is affiliated with: a justice’ position regarding more specific political topics, like abortion- and LBTG rights, is also under consideration (Segal & Cover, 1989: 559). The same applies to legal philosophy - i.e. ranging from being a strict textualist to having a very liberal or pragmatic stance in interpreting the rule of law - and a justice’s policy goals - i.e. the justice’s intended legacy, directly related to the jurisprudence that was created during his or her time in office (Whittington, 2001: 2-15).

Characteristic of the process of decision-making in salient cases is bargaining (Spriggs, Maltzman, & Wahlbeck, 1999: 485-489). This bargaining concerns both the conclusion or standpoint, and the reasoning behind it (the reasoning behind it is also important because this becomes a normative premise for future decision making). This process starts directly after the case is heard. First, the authorship of the majority opinion is assigned by the chief justice. Then, the author of each opinion needs to keep his coalition as large as possible in order for his opinion - which is characterised by both his specific way of reasoning and conclusion - to become the court’s opinion (the majority opinion) after the final vote. Thus, he needs to bargain when writing the opinion. The other justices can influence the content of the opinion by giving advice, by declaring ‘to wait’ to see what the other justices will do (be it joining the majority opinion, partly concurring, and/ or dissenting), or to declare to join or form another coalition - or at least threaten to do so. After the opinions have reached their final version, the Court’s opinion is officially made, but both the majority and minority coalition will present their opinion (Spriggs et al., 1999: 485-489).

So, if a judge or justice feels the need to make an exception to the rule or in any other way feels that interpretation is required - which is characteristic of Supreme Court cases - he carries the burden of justification (Black’s Law Dictionary, 2014: 970). Feteris (2009: 93-104) uses the pragma-dialectical approach for evaluation of legal argumentation and, as such, reconstructs the burden of justification of the justice as the burden of proof in a critical discussion, resulting in the dialectical obligation to defend his or her standpoint (the court’s decision). Usually, when discussing legal argumentation from a pragma-dialectical perspective, one points out that the legal procedure differs from the ideal model of the critical discussion in that it has a neutral third party: the judge or justices (Feteris 1999: 174). Since we are now dealing with the justification of legal decisions, and in particular, the United States Supreme Court’s opinion itself - that supposed neutral third party - it

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would be problematic to consider this court a neutral third party, because then we would assume that this party possesses the power to rule cases based on some transcendent a priori standard which is not influenced by human bias. First of all, considering the text as such would deprive the text of its argumentative nature, since a party of such nature cannot be burdened with justification requirements. And secondly, this is not the case. When analysing the discussion between the two parties, the Court (as a whole) is

considered a neutral third party, and their judgement is the product of a democratic way of establishing its judgement. However, in the discussion that is analysed in this thesis, we look at the product of bargaining between nine humane individuals that are influenced by the considerations that will be further elaborated on further in section 3. This is why, in the justification of legal decisions, the court of justices should not be seen as a neutral third party, but as the protagonist for a standpoint - their decision - that is met with institutional critical doubt.

The standpoint of the justices is defended by reasonable arguments that do not stand in the way of a rational resolution of the dispute. This means that they should also use the appropriate relation between the standpoint and the premise - i.e. the proper argument scheme. According to the pragma-dialectical method, there are three main types of argument schemes: arguments based on a symptomatic relation, arguments based on a causal relation, and arguments based on analogy. For each argument scheme, critical questions were developed in order to evaluate whether the appropriate argument scheme was chosen and applied correctly (Van Eemeren & Grootendorst, 1992: 94-102).

According to Canale and Tuzet (2014: 237), justices mainly use extensive

interpretation to justify their decision in borderline cases, and analogy argumentation to justify their decisions that apply an existing law that rules about something else to a matter for which no law exists. However, they do not address the situation in which two rules are in conflict with each other. It is necessary to find out what argument scheme or

interpretation method is needed in such cases in order to properly evaluate judicial decisions that justify a choice between the application of two conflicting legal rules.

It can be assumed that authoring an opinion is influenced by the justices’ aim to be

effective. After all, writing a reasonable opinion without trying to persuade other justices to embrace that opinion is virtually useless. Again: one needs a majority coalition that

supports the opinion for it to become the court’s opinion and to consequently secure one’s policy goals. Hence, the argumentation that justifies the court’s opinion is presumably the most effective. And, assuming that the court of justices is made up of rational human

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beings willing to decide the matter in a rational way, one expects that both the court’s opinion as well as the concurring and dissenting opinions are supported by a framework of reasonable arguments. But, is this this really the case, or is their aim to be effective

prioritised over their presupposed aim to be reasonable?

I aim to slightly expand pragma-dialectical theory on evaluating the use of the analogy argument scheme in the justification of legal decisions in complex cases that concern conflicting-law issues.

My main research question is: how can the evaluation of analogy argumentation in the legal context be improved? To answer this question, I will first investigate the following secondary research questions by using the case study Boy Scouts of America v. Dale:

1: what is the current status of research on analogy argumentation in the legal context?

2: what are the presumed considerations that justices had to keep in mind when crafting their opinion on Boy Scouts of America v. Dale?

3: was the correct argument scheme chosen in both the majority and the minority opinion of Boy Scouts of America v. Dale?

4: what are the empirical implications of the use of an inappropriate argument scheme?

In this thesis, a comparative evaluation of the use of the argument schemes in both a Court’s opinion (i.e. the presumed most effective one) and the dissenting opinion (i.e. the presumed less-effective one) is offered. Boy Scouts of America v. Dale serves as a case study to investigate the problem empirically and to demonstrate the impact of the choice of argument scheme on the reasonableness and effectiveness of opinion writing for cases that concern two conflicting legal rules.

First of all, I argue that the pragma-dialectical theory on analogy argumentation in the legal context - which is still a work in progress - is in need of further development of proper evaluation criteria for analogy argument schemes - especially concerning the aspects of gauging relevance in similarity. Secondly, I argue that the advancement of policy goals was the most important factor that influenced the justices in choosing a position. Thirdly, I argue that the authors of the opinion texts have let their aim to be effective interfere with the presumed aim to be reasonable at the same time. Their choice of the wrong argument scheme has led to the obscuring of the crucial points of discussion. Fourthly, I propose a new set of criteria for the evaluation of analogy argumentation and a pattern for the legal context where the discussion is actually a monologue.

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In section two, I will give a theoretical background on analogy argumentation in the legal context. In section three, I will provide relevant information on the case study. In section four, a comparative evaluation of the analogy argumentation in both opinions of the case study will be made. In section five, I propose a new set of critical questions pertaining to the use of analogy argumentation in the justification of legal decisions that concern two conflicting rules which is incorporated into an argumentative pattern prototypical to this specific institutional context. And, finally, in section six, I conclude by giving a summary of the results and discuss the implications for further research.

As might have become clear from the above, the method used to analyse these argumentative texts is the pragma-dialectical approach to argumentation discourse as developed by Van Eemeren and Grootendorst (1984, 1992, & 1993).

This particular case was selected because it is a preemption case (a case

concerning two conflicting laws) and its outcome is marked by extreme dissensus (it was a 5-4 decision). Such dissensus is useful because it demonstrates two clearly opposing interpretation or reasoning methods. If the dissensus was less clear, then one opinion would only have been written by one or two justices. The writing of such an opinion

presumably necessitates less bargaining - since there are fewer preferences to consider. A position that is bargained over most is apparently supported by more justices - and thus presumably more effective. Therefore, a 5-4 dissensus is an optimal choice.

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Section 2 - Theoretical background of analogy argumentation in the legal context In this section, I first distinguish between different types of analogies. Then, I elaborate on the institutional constraints. And lastly, I provide a theoretical framework of analogy

argumentation types.

When researching a type of argument in a specific context, the complex of argumentative moves that that type of argument is embedded in should be taken into account as well, because these moves are constrained by the institutional preconditions and the argument itself is thus affected by these moves (Van Eemeren & Garssen, 2014: 44-47. Also, in order to evaluate the analogy argument, premises that support the main premise should also be investigated, since hard cases require second-order

argumentation for their justification. Therefore, when necessary, these the (types of) analogy argumentation schemes are visualised as an argumentative pattern in the form of an argumentation structure.

2.1 - Types of analogies

Analogies come in different forms, but not all are argumentative. First of all, there is the use of an analogy that serves an illustrative or explanatory function, which is called a figurative analogy (Waller, 2001: 200, 209). Secondly, there is the use of an analogy as a legal interpretation method (Canale & Tuzet, 2014: 227-242). Thirdly, there is the analogy that serves as an argument to support a standpoint and which is referred to by pragma-dialecticians as the analogy argument scheme (Juthe, 2014: 109-128; Waller, 2001: 199-218; & Walton, 2014: 23-40).

Figurative analogies serve to elucidate a matter (Waller, 2001: 209). The analogy itself (source case) is fanciful and uncovers the underlying principle to guide the particular that is a familiar case (target case). Perelman and Olbrechts-Tyteca (1969: 374)

characterise this analogy as a “resemblance of structures” in which two aspects of the target case are (implicitly) compared to two aspects of a source case. The source case is often a metaphor, and the target case is an application of that metaphor to the empirical situation.

Canale and Tuzet (2014: 227-242) explain the distinction between extensive

interpretation and analogical reasoning in general. These turn out to be hard to distinguish from each other because they have the same practical outcome and both concern cases for which a material legal rule is lacking. But their consequences are very important. For instance, in criminal cases, analogical reasoning is not permitted, even though it might lead to the same outcome as extensive interpretation would. Also, extended interpretation

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does not require an argument scheme - and thus is evaluated differently - since it is not argumentative in nature. It is thus crucial to be able to distinguish the analogical reasoning from extensive interpretation.

Canale and Tuzet (2014: 227-242) explain that extensive interpretation happens when the standard meaning (literal meaning) of a text said less than was its presumed intention (lex minus dixit quam voluit). Restrictive interpretation, on the other hand,

happens when the standard meaning of a text said more than it presumably intended (lex magic dixit quam voluit). The conclusions are outcomes (N) of interpretation techniques (I) applied to the standard text (P), not standpoints which are supported by arguments. A 1 schematic distinction is shown in figure 1.

Analogy Argumentation v. Extensive Interpretation

Extended Interpretation (borderline case): Analogical reasoning (gap case): C does not fall under N1, obtained via I1 of P 1. C2 falls under N2 obtained by But, C falls under N1’ obtained via I2 of P analogical reasoning (conclusion)

1.1a C1 falls under N1 (source case) 1.1b C2 does not fall under any actual

norm of the system (gap in the law) 1.1c There is a relevant similarity

between C1 and C2

FIGURE 1

Canale and Tuzet (2014: 227-242) used ‘N2’ for the extended norm, but I have replaced this with N1’ to highlight one of the differences between the two tools. The interpretative tool ‘extended interpretation’ results in the justice broadening the scope of the existing legal norm (N1 and N1’) for which the outcome stays an outcome of that particular norm. Here, the interpretation method is at stake.

The argumentative tool ‘analogical reasoning’ results in the justice creating a new norm to fill a presupposed gap of where, before this case, didn’t exist any norm (hence the prohibition of analogical reasoning in criminal law). The new norm might have the same outcome as the other norm, but - since it is a new norm - its outcome - albeit the same as the other - is a different outcome nonetheless because it is one of a newly created norm.

A possible justification of the applied interpretation technique itself is, of course, supported by 1

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The new norm (N2) only applies to the target case. Here, the interpretation method is not at stake. Actually, it is presupposed that no interpretation method could be used to cover the target case. This is why, here, the norm has been indicated as “N2.”

Canale and Tuzet’s (2014: 227-242) contribution is useful in that it helps to make an important distinction: extensive interpretation can be used to expand the norm from the prototypical cases to borderline cases and can be justified by using symptomatic

argumentation. Analogy argumentation is used to justify the creation of a new norm that has the same legal consequences as the source case has. However, their fairly general visualisation of analogy argumentation is not useful for the purposes of this research in that it does not make a distinction between different types of analogy argumentation. Neither they do not provide any criteria for the evaluation of the analogy argument scheme.

Brewer (1996: 923-1028) explains that the analogy argument, which he sees as a fundamental form of legal argumentation, is part of a wider three-stage process. In the first stage, the arguer classifies the legal case as a certain type of case, similar to other

precedents and formulates the appropriate rule. These are certain specific rules that were previously decided on by courts (jurisprudence). In the second stage, the rule is applied to 2 the particular case. And in the third, the appropriate conclusion is drawn. The basic

analogy scheme looks like this (Garssen, 2009: 134; Van Eemeren, Grootendorst, & Snoeck Henkemans, 2010: 99):

1. Y true of Z

2. Z is comparable to X 3. Therefore, Y is true of X

Generally, it can be evaluated by addressing the following critical question: are there any significant differences between Z and X?

2.2 - Distinguishing the communicative activity type of court proceedings Before examining the different types of analogy arguments, it is worth pondering the constraints that this specific institutional context imposes by discussing the common

There is also the ‘analogy-warranting rule,’ which is deducted from the particular rules, combined 2

with more refined facts, to a more general one. The analogy argument bridges the established rules (or source cases) and the particular case (or target case) and is thus preceded by an argument from classification.

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starting points specific to the U.S. legal system. Also, since the evaluation of this analogy argument scheme in general has been given more academic attention than the critical questions specific to each of the subtypes of the analogy argument schemes, it is useful to first discuss these before subjecting the subtypes of analogy itself to closer inspection.

It is essential to gain insight into the common starting points of the critical

discussion of the context of the Court in order to properly evaluate the reasoning that is based on such common starting points. Also, these common starting points provide the basis for assuming that analogy argumentation is an important type of argument in the case study that is used in this thesis.

A common starting point typical to the U.S. is the collection of Federalist Papers which serve as a guide for interpreting legal rules. They are essays written by the framers on their political philosophy that elaborate on the content of the Constitution. Other starting points are the rule of law (material rules), the legal history to offer guidance for interpreting (jurisprudence), and the legal procedural rules.

Part of the procedural rules are the different kinds of accepted reasoning to support an interpretation. Canale and Tuzet (2014: 227) divide the interpretative arguments into three categories that are useful for argumentative analysis: arguments from literal meaning; from legislative intent; and from legislative purpose.

Principles of the particular system are also common starting points within the category of procedural rules. Relevant to our purposes is the principle of ratio decidendi, which is the principle in law that, if a case was decided in a certain way, then a new and similar case should be judged in the same way. Pragma-dialectically speaking, this is the principle underlying the argument from analogy argument scheme, where the arguer

reasons from a source case (C1) to a target case (C2) to which the same conclusion of the source case should be applied.3

Another principle is the justice’ burden of justification. Feteris (2009: 174) reconstructs the burden of justification of the justice as the burden of proof in a critical discussion, resulting in the dialectical obligation that he or she must defend his or her standpoint (the court’s decision) by the correct use of appropriate argument schemes that are allowed in the legal context.

Van Eemeren and Garssen (2014: 44-47) write about legal reasoning that the critical questions are anticipated by the protagonist of the standpoint and that they are

Walton, Reed, and Macagno (2008: 43-80) show that the argument from analogy is the principle 3

underlying case-based reasoning. According to Gordon (1995) and Weinreb (2005) argument from precedent in law is based on argument from analogy.

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therefore already answered in the text itself. This is not surprising. In many other contexts, these critical discussions are often in the form of a dialogue, instead of a monologue like the Court’s opinion document. In the dialogue, the critical questions are answered through a dialectical exchange. But in the justification of legal decisions, such a dialogue is not taking place - especially not for the court’s opinion document itself, since there is only one text and not even the informal possibility of a dialogue taking place in the unlikely event that an antagonist breaks a procedural rule and interrupts the reading of the decision.

Answering Critical Questions in a Monologue

1. Rule X must not be interpreted as X’ (broad) but as X’’ (with an exception to cases like these).

1.1a Application of rule X in interpretation X’ leads to result Y’ (1.1b) Result Y’ is undesirable

1.1b.1a Result Y’ is incompatible with purpose P

(1.1b.1b) Purpose P is intended by the legislator/rational goal underlying the legal system

1.1b.1b.1 [source for purpose P]

1.1c Application of rule X in interpretation X” leads to result Y” (1.1d) Result Y” is desirable

1.1d.1a Result Y” is compatible with purpose P

(1.1d.1b) Purpose P is intended by the legislator/rational goal underlying the legal system

1.1d.1b.1 [source for purpose P]

FIGURE 2

According to Feteris (2009: 93-114) the support for the standpoint is represented in the main level (level 1) of argumentation (1.1a; 1.1b; 1.1c; and 1.1d). However, to answer the critical questions associated with the particular scheme, the argumentation must consist of three levels of subordinate argumentation. As can be seen in figure 2, the second level (1.1b.1a and 1.1b.1b, and 1.1d.1a and 1.1d.1b) answers the critical question why, for instance, result Y” is desirable and Y’ is not desirable. The third level (1.1b.1b.1, 1.1d.1b.1) answers the critical question why purpose P is intended by the legislator or the rational goal underlying the legal system. It refers to the source text. This level is the final step in showing that his or her arguments are acceptable because they are in line with the

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common legal starting points. If, for instance, a justice claims that an exception should be made because the outcome would be unacceptable because it is not in accordance with the intention of the legislator, he uses a symptomatic argument scheme to support this standpoint that restrictive interpretation is required. In figure 2 these three levels of argumentation that answer the critical questions are visualised as an argumentative structure.

2.3 - Types of analogy arguments

Analogy arguments can be divided into two subtypes (Waller, 2001: 200; Walton, 2014: 23; Juthe, 2014: 109-128). These subtypes do not have fixed names: scholars differ in their views on how to distinguish between them. Juthe (2014: 109-127) offers a systematic review of some of the parameters used in scholarship to classify the subtypes of analogy argumentation: epistemic status; function or purpose; logical form; domain constraint; mode of influence; quantity of analogues; direction of vertical relation; and, finally, objects of comparisons.

In general, what can be said about the classification of analogy arguments is that one kind has been given an ostensive definition: the violinist example. I shall hitherto forth refer to this type as the first type. What shall be called the second type comes back in different forms which are generally the same in their main structure.

The first type is the type which Waller (2001: 201) claims is the type that is most often found in the legal context. Waller (2001: 200-202, 215) - who distinguishes the analogy arguments on the basis of their logical form and their intended goal - characterises them as deductive in nature and claims that its conclusion calls for consistency in the course of action. Garssen (2009: 134) calls it the “normative analogy.” The analogy serves to 4 recognise - not to establish - a principle that the parties hold implicitly (Waller, 2001: 208). The scheme looks like this:

1. We both agree with case a

2. The most plausible reason for believing a is acceptance of principle C 3. c implies b (b is a case that fits under principle C)

4. Therefore, consistency requires the acceptance of b

Garssen (2009: 136) calls this type “Variant 2: Comparison Argumentation and the Principle of 4

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Waller (2001: 202) implies the following two critical questions for the evaluation of

deductive arguments by analogy: do we really agree with the principle C; and do the two cases really fit under the same principle C?

The challenge here is to formulate the underlying principle, or rather why we believe something. Considering more cases than the case at hand can help to narrow the principle (Waller, 2001: 202). However, it is very likely that the principle remains implicit. If this is the case, the principle that both parties believe in might seem to be a common starting point but they can never be sure if the principle is exactly the same. Chances are that there are slight differences in the principle that both parties hold, and these differences remain obscured. 5

The First Type of Analogy Argumentation

1. A is plausibly drawn as an acceptable conclusion in target case C2 (conclusion) 1.1a A is plausibly drawn as an acceptable conclusion in source case C1 (derived premise)

1.1a.1 A situation is described in source case C1 (base premise)

1.1b Generally, source case C1 is similar to target case C2 (similarity premise)

FIGURE 3A

Example

1. You feel content after buying 1000 euro-costing rain boots (conclusion) 1.1a Mrs. Trump was perfectly content with them (derived premise)

1.1a.1 Mrs. Trump bought the same boots that you bought just now (base premise) 1.1b Generally, you buying 1000 euro-costing rain boots and Mrs. Trump buying the same shoes is the same situation (similarity premise)

FIGURE 3B

Waller (2001: 208) characterises this type of analogy argument as one in which the principle and 5

the particulars are mutually adjustive to each other, and that the argument is used to let the audience recognise the principle they already hold, or - interestingly - to modify the view of the audience on the particulars. Can they then be fallacious? According to Waller, yes. Misuse occurs when figurative analogies - which are designed to accomplish understanding, and not to serve as argument - are used as deductive arguments by analogy. In fact, any time the intended use and the actual use do not correspond, this should be regarded as a fallacy.

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Disanalogy Argument

1. The presence of X &Zin C1 does not provide a sufficient basis for inferring the presence of Z in C2

1.1a

C1 and C2 both have X

1.1b C1 has G

1.1c

C2 does not have G

1.1d

C1 also has Z

1.1e

Any X is Z unless it also has not-G / unless it doesn’t have G (disanalogy warranting rule) FIGURE 3C

Walton has made some improvements to the applicability of this scheme, which in a pragma-dialectical mould of an argumentative structure, would look like the pattern in figure 3a (Walton, 2014: 24-25). According to him, adding the derived premise results in a more natural ‘fit’ of the scheme to the empirical situation. An example is given in figure 3b. The pattern for disanalogy as proposed by Brewer (1996: 110) can be found in figure 3c.

Walton (2014: 24-25) proposes the following critical questions: are there respects in which C1 and C2 are different that would tend to undermine the force of the similarity cited; is A the right conclusion to be drawn in C1; and is there some other case (C3) that is also similar to C1, but in which some conclusion other than A should be drawn?

The main problem with the evaluation of this type of argumentation when using this model are the first and third critical questions. How can relevant similarity between two cases be established? As can be seen in figure 3a, the conclusion is supported by two coordinative premises: one that pertains to the conclusion of a source case, and one that points out the similarity between the source- and target case. Should the similarity not be established, the support for the standpoint or conclusion fails in its entirety. It is therefore

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paramount that the argument that points out the similarity between the source- and target case (1.1b) is properly evaluated.

However, criteria for establishing relevant similarity - which shall henceforth be referred to as the “relevant similarity problem” - are lacking. Consequently, reasoning such as in figure 3b can not be evaluated as fallacious while it actually should be evaluated as such. There, both the subject in the source- and target case concern middle-aged ladies in the situation of buying 1000 euro-costing rain boots. Therefore, these cases might seem similar at first hand. But there might be differences which diswarrant the analogy. For instance, the lady in the target case might not have the luxury of being able to afford such shoes. Or, the lady in the target case lives in an environment where such shoes might actually be a burden, like the Saharah Desert. These cases might be similar in some respects, but differ in very relevant other respects. But, without criteria to surface these aspects of the situation that diswarrant the analogy, this type of reasoning might seem perfectly reasonable.

The second type of analogy argumentation is inductive in nature and its conclusion is a prediction concerning properties that a target case is likely to have in the light of other relevant properties that the target case and the source case share (Waller, 2001: 202; Walton, 2014: 23-40). Garssen (2009: 135) calls it the “descriptive analogy.” The schemes 6 looks like this (Waller, 2001: 202):

1. D has characteristics e, f, g, and h 2. E also has characteristics e, f, g, and h 3. D also has characteristic k

4. Having characteristics e, f, g, and h is relevant to having characteristic k 5. Therefore, E will probably also have characteristic k.

Waller (2001: 203) implies the following critical question for the evaluation of inductive arguments by analogy: are both cases really similar? For this, criteria have been offered by several scholars (Copi & Cohen, 1990: 363-365; Hurley, 2003: 469-470). Waller claims that adding relevant characteristics makes the argument stronger. Problematic about this is that it implies that all the characteristics enjoy equal weight in the evaluation. Also - again - no criteria are established for determining the relevance of the similar

Garssen (2009: 135) calls this type: “Variant 1: Comparison Argumentation and the Extrapolation 6

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characteristics. And, it is not evaluated if there exist any other cases that diswarrant the analogy.

Walton (2014: 28-29) claims that no reference to similarity is required and believes that Hurley’s (1990: 469-470) criteria are most appropriate. But the criteria - relevance of the similarities; number of similarities; nature and degree of disanalogy; number of primary analogues; diversity among primary analogues; and specificity of the conclusion - explicitly refer to relevant similarities. So here, Walton seems to contradict himself. And here too, no criteria are proposed for establishing such a relevance in similarity.

The first type of analogy argument is the type that is predominant in the legal context, but it is important to know that this type of analogy argument exists for three reasons. First: the institutional preconditions indicate that this type of argument is not always allowed in the legal context. In criminal cases, the presumption of innocence is one of the legal principles, and this type of reasoning is in conflict with this principle for it

concerns a prediction, which is inherently impossible to prove, and suspects are presumed innocent until proven guilty (the 14th Amendment to the Constitution of the United States). Therefore, it is important to critically assess the analogy argumentation used in the legal context - including the distinction between the types of analogy argumentation - in order to evaluate if the reasoning is permitted.

Second: it is not hard to imagine that this type of analogy can be used to support other premises if the reasoning concerns reasoning pertaining to the intention of the legislator or reasoning according to the presumed purpose of the legislation. Thus, even though we will not encounter this type of analogy as main premise supporting the verdict, it might be encountered in the complex of argumentation.

Third: the method used to support this type of analogy argumentation can be useful in solving the problems in the theory on the first type of analogy. The problems with the first type of analogy were that Waller’s (2001) visualisation required formulating an abstract underlying principle, which might not be realistic, and that Walton’s (2014) adapted version included a relevant similarity premise without offering any criteria for relevant similarity. The method of this type of analogy is called case-based reasoning (CBR), which counts factors of similarity.

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There are two systems for case-based reasoning: the HYPO - which is not useful - and 7 the CATO system (Walton, 2014: 31). The CATO system uses factors. These factors can be arguments that either support the issue or don’t support it. The relevance is taken into account, for strong contra arguments receive a higher negative score than weaker contra arguments. The same goes for pro arguments. Pro’s should be weighted against the con’s to measure the strength of the argument (Aleven & Ashley, 1997: 170-179).

The problem with this system is that levels of importance should be measured numerically. For instance, how important is a dissimilarity in age of the subjects of the above-mentioned example? If the subject in the target case is a 2-year-old girl, then an age dissimilarity should definitely be seen as an important contra argument - for buying expensive shoes when not being able to wear them for more than a few months on account of fast-growing feet is a important property that is definitely not in support of the standpoint. But the age-dissimilarly of a 20-year-old lady might not be important at all, for it is very unlikely that a 20-year-old lady’s feet will grow a significantly large amount in the period that makes buying such boots feasible. Moreover, this dissimilarity might even be considered a pro argument - given the fact that a 20-year-old lady might enjoy the boots longer than the older Mrs. Trump. So the levels of importance of the properties cannot be left out. If the factors can really be measured in their strength, then this method could be

The HYPO system is a three-level system that models the arguments as a series of moves 7

(Bruninghaus & Ashley, 2006: 1577-1580). First, the proponent addresses the initial analogy to support the standpoint. Then, the antagonist brings forward critical questions. And lastly, the proponent addresses these critical questions and/or provides extra support for the standpoint. At first glance the HYPO system seems to be useful in dialogues only. But I would argue that it can also be used in a monologue if the proponent anticipates the critical questions and incorporates these in the support for the standpoint, which is in line with what was said in sections 2.2.

FIGURE 4 The Abstract Story Scheme

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called inductive. But then again: no system for scoring pro- and contra arguments is offered.

Walton (2014: 34-35) proposes narrative scripts or story sequences to solve the relevant similarity problem. Narrative scripts link a series of situations to each other. If the source- and target case are both analysed as such, then the similarity between both cases can be visualised. Narrative scripts can be used as a tool that enables us to define similarity by means of common knowledge and shared experiences - like, for instance, jurisprudence. According to Pennington and Hastie (1992: 189-206), these scripts are often used in legal contexts for interpreting difficult situations. These scripts are not argument schemes, but 8 they are based on them and actually explain the relevant similarity between the source- and target case.

Bex, Van Koppen, Prakken, and Verheij (2010: 123-152) combine these explanatory scripts with actual arguments that support the individual elements of the script. These arguments justify the individual aspects of the story sequences. So, the events of a target case are “translated” into a more understandable narrative for the audience. And the elements of the story are supported by arguments as we know them. Characteristic is that both the source- and target case have the same abstract story scheme, and thus fits both the complex situation (the target case) and the more relatable and clear situation (the source case). The abstract story scheme serves to bridge both cases to show their similarity. I have designed figure 4 to illustrate the above. Here, the sequence on the left represents the target case of the rain boots' example, the middle represents the abstract story scheme, and the right part represents the source case which serves as

argumentative support for the abstract story scheme which, in turn, serves to elucidate the complex target case.

I should note however that, even though applying the combination of narrative scripts and arguments to analogy argumentation is useful to illustrate the similarity

between both cases, the script cannot be considered as argumentative by itself. The fact that each separate element might be supported by an argument does not make the script-based analogy itself argumentative in nature. The script merely shows how both the

This means that these scripts can not be used for analogies of the second type, because the 8

scripts can be used to compare situations - not objects. Objects can not always be analysed as story sequences due to their nature. For instance, books can be analysed as such. They are, after all, stories. But other objects, like plants for instance, can not be analysed as a story sequence. However, it might be worth investigating if descriptions of objects might be analysed as story sequences.

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source case and the target case are similar in some respects. It requires an argument that pleads for consistency, or at least a relevant similarity premise to make the script itself of argumentative nature. Only then can this tool be used as a model for the analogy

argument itself. If these scripts are used as arguments, rather than serving to explain the relevant similarity, then they are figurative analogies and - if posed as an argument - fallacious. Additionally, no criteria are offered to establish whether the similarities are actually relevant and it does not take into account any dissimilar cases.

In this section I gave an overview of theory relevant to this thesis. It was established that legal decisions could be analysed as a critical discussion and that analogy argumentation is an important type of legal reasoning. I hope to have made clear how to differentiate non-argumentative analogies from non-argumentative analogies and to have given some insights into the merits and demerits of the descriptions of analogy argument subtypes. There is no definitive judgement of which description or model works best. Therefore, it is best to first apply the existing theory to a particular case in order to investigate this further.

The main problem in the theory of analogy argumentation is that of establishing and gauging relevant similarity between the source- and target case. In the next section, more information will be given on the case study in order to properly apply the above-mentioned theory to the case and to in order make recommendations for improvement of the existing theory on analogy argumentation.

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Section 3 - Boy Scouts of America v. Dale

In this section, more information will be given about the case study at hand. I will first outline the legal facts and describe the history of the case before it was granted certiorari by the supreme court clerk. Then, I will briefly discuss the minority and majority opinion of 9 the court. The source for all of this information is the case document of Boy Scouts of America v. Dale (530 U.S. 640, 2000). Finally, I will elaborate on the considerations for the justices during the bargaining stage of this specific case.

James Dale first joined the Monmouth Council’s Cub Scout Pack 142 at the age of eight in 1978. There, he remained an exemplary scout until the age of 18, when he received the rank of Eagle Scout - which is one of the scouting’s highest honours. A year later, he became assistant scoutmaster as an adult member. Around the same time, Dale went to Rutgers University where he came out as a homosexual. He got involved with the

university’s Lesbian/Gay Alliance - eventually as co-president. When he attended a

seminar, Dale was interviewed on his advocacy for the need of gay role models for young homosexual teenagers. A few weeks after the newspaper appeared, Dale’s adult

membership was revoked because, according to Monmouth Council’s executive James Kay, the Boy Scouts of America (BSA) “specifically forbid membership to homosexuals.”

Dale filed a complaint against the BSA in the New Jersey Superior Court in 1992. The complaint held that revoking Dale’s membership was based solely on his sexual

orientation and that, thus, the BSA violated the New Jersey public accommodations law, which prohibits discrimination on the basis of sexual orientation in places of public accommodation. The court, however, held that this law was not applicable because the BSA was not a place of public accommodation. Additionally, they held that the BSA’s position regarding active homosexuality was clear and that accordingly, the BSA was entitled to not accept Dale as a leader because of their First Amendment right (freedom of expressive association). The appellate division then ruled that the public accommodation law did apply to the BSA and that their constitutional claims were unfounded.

The state supreme court also ruled that the BSA was a place of public accommodation. And, regarding their constitutional claim, that the BSA was not

“sufficiently personal or private to warrant constitutional protection under the freedom of

If a case is granted certiorari, this means that the supreme court orders the lower court to send 9

the record of a terminated case in order for it to be reviewed (Judiciary Act of 1891, article 6, section 26 Stat. at 828).

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intimate association.” It did agree that the BSA “expresses a belief in moral values and uses its activities to encourage the moral development of its members. (…) [But we are ] not persuaded (…) that a shared goal of the Boy Scout members is to associate in order to preserve the view that homosexuality is immoral” (160 N. J., at 613, 734 A. 2d, at 1223-4). Therefore, it ruled that the inclusion of Dale did not significantly affect the BSA’s members to carry out their purposes. It also held that it was in the interest of the state of New Jersey to eradicate the emanations of discriminatory practices, and that the public

accommodations law truncates no more free speech than is indispensable. Finally,

regarding the BSA’s reliance on Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, Inc., which was referred to in defence of the BSA’s claimed First Amendment Right to exclude Dale, the court held that this piece of jurisprudence was inapplicable, because reinstating Dale would not compel the BSA “to express any message” (160 N. J., at 624, 734 A. 2d, at 1229).

The BSA’s petition for certiorari was granted by the United States Supreme Court in order to resolve if the application of the public accommodations law violated the First Amendment (528 U. S. 1109 (2000). Chief justice Rehnquist authored the opinion of the court. O’Connor, Scalia, Kennedy, and Thomas, JJ., joined the majority opinion. It held that applying the New Jersey’s public accommodations law here would violate the BSA’s First Amendment right of expressive association. Stevens, J., authored the minority opinion. Souter, Ginsburg, and Breyer, JJ., joined the minority opinion. Souter, J., authored an additional minority opinion, which Ginsburg and Breyer joined. Both dissenting opinions follow the reasoning of associate justice Steven, but the latter dissenting opinion does not endorse the use of one of his arguments. Therefore, for the purpose of not making these small distinctions not too complex in this thesis, when referring to the dissenting opinion, Stevens text will be used without that particular argument that was under discussion.

The 5-4 majority opinion reversed the decision of the New Jersey Supreme Court that the Boys Scouts of America (BSA) were to readmit Dale - who was ejected from the

organisation on the grounds of his homosexual orientation.

Legal reasoning was as follows: the author of the court’s opinion - chief justice Rehnquist - wrote that it is the objective of the BSA to instil in its members some core values. One of its values - although not explicitly expressed - is heterosexuality. If the BSA were to be held to the law against discrimination and thus be forced to accept candidates whom commit to homosexual conduct, this would infringe their First Amendment right to freely associate because his beliefs might affect the BSA’s ability to broadcast the

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message it wishes to convey (530 U.S. 640, 2000). The legal considerations thus entail the ostensible conflict between a state law and the Bill of Rights - two basic legal sources.

My analysis of the court document, the information given on the supreme court justices’ official website, and scholarship on the subject leads to the conclusion that, for this case, there are four considerations that the justices might have kept in mind when deciding their position regarding the case: legal considerations, ideological considerations, public

opinion, and practical considerations. As this analysis is based on the outcome of the case, it can be regarded as no more than a tentative reconstruction of the considerations that the justices took into account. They were not interviewed, nor were any other personal documents acquired. The reader must therefore keep in mind that these are speculative in nature, and serve only to gain some insight into what the justices probably have

considered.

A few trends that indicate strategic choices regarding legal considerations can be distinguished. Referring to these legal sources lends justices ultimate legitimacy because it proves that they follow the rule of law and the timeless guidance of the Framers and their intentions. According to Lupu and Fowler (2013: 179), majority opinions rely heavily on precedent. Corley, Howard, and Nixon (2005: 329-340) show that reference to the Federalist Papers has increased and observe that this development runs parallel to an increased dissensus in the Supreme Court and the increased scrutiny which they are under. It is argued that justices are in want of added legitimacy to make them immune to criticism from other justices and other branches of government - and to public controversy overall. Therefore, reference to the Papers is purely tactical and is mostly used in cases where there is a minimal majority coalition (in order to “cure” dissensus) and when they argue for formal alterations of precedent (because this would make them “activists,” and thus inevitably in need of a little extra help from the ghosts of the founding fathers and the authority that comes with it). Although not stated explicitly, I think that a similar explanation can be given when accounting for the use of precedent.

In accordance with what might be expected from this salient case, the use of reference to basic legal sources (written law) is not enough to justify their decision because it is exactly two of these basic legal sources that seem to be in conflict. I have made a reconstruction of all the main arguments of the court’s opinion which can be found in appendix 1. This reconstruction shows that, in the end, all arguments in support of their opinion rely on previous court decisions (precedent) for the interpretation of the basic legal sources. For some arguments, the link between the argument and precedent is direct.

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However, the reconstruction also unveils arguments that rely on definitions of certain concepts in previous court cases that settle some questions regarding the applicability of the law - and thus in those instances the link between the argument and the precedent is indirect. Here, the established definition in the precedent is merely a by-product of the case. The case itself establishes a legal rule that is not relevant to the argumentation the Court’s opinion in BSA v. Dale.

The second consideration that deserves attention here, is the ideological consideration. Ideological considerations are closely related to the individual justices’ policy goals. However, policy goals are more specific and concrete, whereas words that pop into mind when considering ideology are “conservatism” and “liberalism.” Ideology of the individual justices can be quantified by the Segal-Cover score. This instrument

measures a justice’s conservatism on a scale from null to one hundred, null being very conservative and one hundred meaning very liberal. 10

TABLE 1 - SEGAL-COVER SCORES OF THE INDIVIDUAL JUSTICES Ideology, it turns out, is not the main concern in this case - at least not for every justice. The table below shows which of the justices belong to which coalition, their political party affiliation, and their Segal-Cover score. Overall, the dissenting justices are more liberal than those who joined the majority opinion. The average Segal-Cover score of the majority opinion is 19,4. The average Segal-Cover score of the minority opinion is 43. This is in accordance with what could be expected when considering ideology. However, two

members of the majority coalition - O’Connor and Kennedy - are evaluated as more liberal

Justice Coalition Affiliation Segal-Cover Score

Rehnquist (chief) Majority (author) Republican Party 4 O’Connor Majority Republican Party 41 Scalia Majority Republican Party 0 Kennedy Majority Republican Party 36 Thomas Majority Republican Party 16 Stevens Dissent (author) Republican Party 25 Souter Dissent Republican Party 32 Ginsburg Dissent Democratic Party 68 Beyer Dissent Democratic Party 47

www.supreme-court-justices.insidegov.com (retrieved on 20-1-2016 at 11:19). 10

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than two of the four dissenting justices (although both of them are affiliated with the GOP in contrast to the other two dissenting voices). One of those two less-liberal dissenting justices is Stevens, the author of the dissent.

Evidently, ideology was a subordinate concern for O’Connor, Kennedy, Stevens, and Souter, because the outcome of their votes runs contrary to their ideology. Take - for instance - associate justice Stevens: his ideology seems somewhat conflicting with his policy goal: the defence of same-sex marriage. So here, his policy goal is more important 11 than his ideology. And evidently, this is also the case for O’Connor and Kennedy, but in reverse direction. This is a symptom of the strategic dimension. For if strategy did not play a role, then the coalitions would be matching the ideologies that the individual justices are known for. Or, put differently, in Boy Scouts of America v. Dale, there is no clear ideological distance between the majority and minority opinion.

This result can be extrapolated to a bigger context: Rehnquist - the contemporary chief and a conservative (and thus expected to be pro-states rights ergo in favour of upholding the decision made in earlier instance to give precedence of the New Jersey State Law) - voted in favour of the national government in 51% of all cases. Furthermore, 12 he even voted in favour of the national government in 67% of the cases that concerned conservative policy. So - as Bayback and Lowry (2000: 73-97) so aptly point out - concepts of states rights (or federalism) are used opportunistically, and not as guiding principles.

Hettinger, Lindquist, and Martinek (2004: 123-137), however, state that dissenting in the Supreme Court is often understood as a strategic choice, rather than an ideological one. According to Spriggs, Maltzman, and Wahlbeck (1999: 485-506), a justice’s response during the draft-circulation or bargaining stage results not only from their disagreement with an opinion, but also the author’s prior level of cooperation with them and the size of the majority coalition. Justices are interdependent in forming the majority opinion.

Sometimes, a small ideological sacrifice is needed in order to maintain the majority in the coalition. The author of the opinion should be mindful of the ideological distance between the author and the rest of the majority coalition; the ideological heterogeneity of the same coalition; and the positions taken by the members of the majority conference coalition (their amount of suggestions to the draft and their more concrete “threats” either “to wait” or to dissent). These are all parts of this strategic negotiation process and the number of

http://supreme-court-justices.insidegov.com/l/101/John-Paul-Stevens (retrieved on 29-01-2016 at 11

13:10).

He passed away during the process of writing this thesis, and, at the time of finishing this thesis, 12

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drafts and responses to it exemplify the interdependency of the justices (Wahlbeck, Spriggs, & Malzman, 1998: 294-315) - and their awareness of this.

The third consideration relevant to this case is public opinion. The relation between the court and the general public has two aspects. First of all, the justices are appointed by the consecutive executives, whom - at least in theory - represent the majority of general public (the United States Constitution, article II, section 1 & 2). Justices thus have certain commitments towards their appointer directly and the public he represented indirectly. On the other hand, this is also constrained somewhat by the Supreme Court’s power of judicial review: James Madison argued that if every constitutional question would be decided by the public political bargaining, then the Constitution would be reduced to a battleground of competing factions, political passion, and partisan spirit (Federalist 50). 13 So this lends justices the authority to do what is right, and not just what the public wants them to do. The press serves as a medium of communication between the two

broadcasting parties.

Convincing theory on establishing and quantifying this influence is scarce. The relationship by it self is hard to measure, let alone any concepts of causality or chronology. Casillas, Enss, and Wohlfahrt (2011: 74-88) courageously argue that - even when

controlling for the spurious conditions that influence both public opinion and the decisions of the Supreme Court - the public mood is a factor that directly constrains their decisions. So, according to them, a relationship between the public mood and justices’ opinions is established (albeit of an unknown character). Evaluating such a relationship in numbers, however, is illogical.

Gauging such a complex relationship with a qualitative approach, however, is. I propose that it would make more sense to look at the effects of case in general, and the effects of the decision in particular, in order to assess such a relationship. The court’s opinion has consequences for themselves and their policy, but also for the parties involved in the case. Indicators of these consequences for the parties that are directly involved in the case are, for example, ties that are broken or formed with the parties after the decision of the court. The amount of amicus briefs that are filed for both parties are indicative of third-party interests, and represents third-party support for either of the parties. These are all effects of the decision or of the certiorari grant respectively that exemplify what is at

Victor Kappeler, Police Civil Liability: Supreme Court Cases and Materials (z.p., 2006) p. 3; 13

http://www.supremecourt.gov/about/constitutional.aspx (retrieved on 27-01-2016 at 11:09). Every website on the Supreme Court in general, and on judicial review specifically, includes this exact phrase in their text. However, every copy-past-er of this seems to be oblivious to the original source of this paraphrase - including myself. I suspect it to be a paraphrasing of Federalist 50.

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stake for the general public. It can be assumed that the justices keep these consequences and interests in mind, but there is no proof for this.

The BSA has lost its support from - among others - Chase Bank and Levi Strauss. Also, several schools have severed ties with the BSA. Secondly, it is evident that there 14 was something at stake for each of the 55 organisations or persons on behalf of whom amici curiae briefs were filed - the majority of which were in support of Dale. If the 15 purported indicators are appropriate, then we can infer that the afore-stated hypothesis is applicable to the case study at hand: the court did not rule in accordance with the public mood because 1) the party in whose favour the court ruled lost some important

benefactors after the opinion of the court was delivered and these effects had a direct link with the case; and 2) more amicus briefs were filed in favour of the party that lost the case than were filed in favour of the party that won the case.

Symptomatic of the problems described above is the difficulty of establishing a theory on strategy in this realm. Accordingly, nothing more than a pattern can be found. Casillas et al. (2011: 74-88) found that, in non-salient cases, the supreme court seems to comply with the public opinion, but in salient cases like the case study at hand the

opposite is true. They are unsure, however, of the chronological order here. Does the Supreme Court ignore public opinion in salient cases; or does the Supreme Court’s ignoring of public opinion make cases more salient?

And then finally we arrive at the practical considerations for this case. For the case at hand, the paramount practical consideration is the assignment of the authorship of the opinion. The chief generally considers the workload of the candidate for authorship and his effectiveness and expertise on the specific area. This relates mostly to the constant lack of time that justices are in and play a bigger role when the end of a term approaches.

Additionally, an equal distribution of authorship will be beneficial to the harmony of the court, securing eased cooperation in the future (Wahlbeck, 2006: 1729-1755; Sommer, 2010: 316-341).

These practical considerations constrain the strategic moves most explicitly. The chief justice (or the senior associate justice of the coalition when the chief is dissenting) needs support for his majority coalition. Strategically, then, it might be attractive to assign authorship to his non-allies in non-salient cases to ensure this equal distribution of

authorship. In the assignment of the authorship of the majority opinion in salient cases, the

http://www.civilrights.org/monitor/vol11_no4/art3p1.html (retrieved on Jan. 13th, 2016 at 10:34). 14

530 US 640 (2000) p. 642-644 (in the notes under *). 15

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Chief Justice will want to assign the authorship of the Court’s opinion to himself or a close ally because then he or she has the greatest chance in producing policy gain and

minimising policy loss. But this is also risky, for if he does this too often, and if these justices are “on to him,” this strategic adaptation of the informal norm might harm the harmony just as much (Wahlbeck, 2006: 1729-1755). And - as mentioned earlier - also the size of the majority conference should be taken into account, because the smaller the majority coalition, the greater its sensitivity to bargaining and threats (Wahlbeck et al., 1998: 294-315).

So, the assignment of authorship depends first of all on the workload. The table below (table 2) shows how many times each justice was the author of a unanimous court’s opinion; a dissenting opinion; or of the majority opinion. This table only shows that for the 16 relevant month. Chief justice Rehnquist wrote the majority opinion for our case. All justices of the majority coalition had written either four or five opinions and accordingly, Rehnquist ended up with five. So this - by itself - is not alarming. However the workload of a chief is generally more vexing than that of associate justices. Moreover, the case took place at 17 the end of a term - when the workload is at its peak. It would have been more practical to 18 assign the authorship to any other justice of the majority conference who had also written but four opinions before this case - like Scalia or Kennedy.

TABLE 2 - AUTHORSHIP PER TYPE AND PER JUSTICE IN JUNE (WORKLOAD) Rehnqu ist O’Conn or Scalia Kenned y

Thomas Stevens Souter Ginsbur g Breyer total 5 5 4 4 5 7 4 2 6 Maj. 2 2 1 1 3 3 1 1 3 Dis. 3 2 2 3 1 4 2 1 3 Una. 0 1 1 0 1 0 1 0 0

Data derived from the list of the October 1999 term cases, accessible at https:// 16

supreme.justia.com/cases/federal/us/ (retrieved between 27-01-2016 at 18:00 and 28-01-2016 at 11:00).

Kermit L. Hall, James W. Ely, and Joel B. Grossman, “The Oxford Companion to the Supreme 17

Court of the United States” (zp. zj.) 163, 314.

The case was argued on april 20th and decided on June 28th. A term generally runs from the 18

beginning of October until the end of June or beginning of July. See: http://www.supremecourt.gov/ about/procedures.aspx (retrieved on 27-01-2016 at 18:37). https://supreme.justia.com/cases/ federal/us/year/2000.html (retrieved on 27-01-2016 at 19:47) shows this was the last case of the term. When counting all the cases in the October 1999 term, one arrives at a total of 77 cases. 21 of those took place in the last month of that nine-month term (so: 27%).

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Another practical consideration when assigning authorship is ensuring an equal

distribution conducive to the harmony among the justices. Table 3 shows the distribution of authorship per type per justice over the whole term. Among the justices in the coalition, 19 majority opinion authorship seems equally distributed, - although assigning it to Scalia would be a better choice. But, because Scalia is also a fervent writer of dissenting opinions - making his total authorship sum significantly higher than others, assigning authorship to himself is - in the end - a better choice. Rehnquist and O’Connor both have the least authorships (eleven), but if he’d assigned the authorship to O’Connor, the workload would be unbalanced (see table 2).

TABLE 3 - DISTRIBUTION OF AUTHORSHIP PER JUSTICE OVER THE OCTOBER 1999 TERM Obviously, practical considerations were subsidiary, because authorship was assigned by the chief to himself - despite the extra workload and the timing. Apparently, this case was so important to the advancement of his policy goals, that he could sacrifice his scarce time to write the opinion of the court himself. But he did not risk disharmony in choosing to do so because this choice was beneficial to the equal distribution of cases over the entire term. Moreover, this might even have been his argument for assigning the authorship to himself in lieu of the arguably real reason: to expedite his policy goal. By the same token: in this case the majority coalition was dangerously small. This would make the opinion more vulnerable to threats and bargaining. It can therefore be assumed that this opinion has had a relatively large number of drafts and it is not hard to imagine that the chief anticipated this and was compelled to take matters into his own hands.

In this section the case study was introduced, discussing the legal facts; its legal history; and the reasoning of the U. S. Supreme Court. Additionally, I have given an overview of the relevant considerations that might have influenced the justices’ opinion. These

Rehnqu ist O’Conn or Scalia Kenned y

Thomas Stevens Souter Ginsbur g Breyer total 11 11 16 14 12 23 14 13 17 Maj. 7 8 5 7 6 7 3 3 5 Dis. 3 2 8 4 4 16 6 5 9 Una. 1 1 3 3 2 0 5 5 3

Data derived from the list of the October 1999 term cases, accessible at https:// 19

supreme.justia.com/cases/federal/us/ (retrieved between 27-01-2016 at 18:00 and 28-01-2016 at 11:00).

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considerations are most likely factors that influenced the decision of this case, as well as the reasoning of both the coalitions. The argumentation of both the majority and the minority opinion will be evaluated in the next section.

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Section 4 - Analogy argumentation in the opinions: analysis and evaluation In this section, the analogy arguments used by both opinions in BSA v. Dale will be analysed and evaluated. Proper evaluation of argumentative discourse requires an

analytic overview, in which the standpoints in the difference of opinion, the arguments, and their underlying structure should be reconstructed. This is what will be addressed in

section 4.1 - although the argumentative structure of the most important arguments will be included in the appendix 1 and 2 for the majority and minority opinion respectively. In section 4.2, and on the basis of the analysis, the argument schemes used by both parties will be evaluated with respect to the choice of the scheme. A complete evaluation requires that we also observe all the rules for the critical discussion here, but, given the

quintessence of this thesis, discussion rule 7 will be of primary focus (van Eemeren & Grootendorst, 2004: 123-126): “A party may not regard a standpoint as conclusively defended if the defence does not take place by means of an appropriate argumentation scheme that is correctly applied”.

Section 4.1 - Analysis of the opinions

In the following sub section, an analysis of reasoning of the opinions is given. First the most important parties in this difference of opinion are identified. Then, the differences of opinion itself are identified. Then, the common starting points are given and finally some general remarks are made about the nature of the reasoning in both opinion documents. In figure 5 an overview is given of the main arguments used by the Court. The same is done for the minority opinion in figure 6. A more comprehensive overview is given in the

appendix.

The first party is the majority coalition: the protagonist is the collection of justices whom, after the final vote, are considered to be in the majority coalition. However, they speak on behalf of the entire Supreme Court. Their standpoint is: “applying the New Jersey’s public accommodations law to require the Boy Scouts to readmit Dale violates the Boy Scouts’ First Amendment right of expressive association.” Since the protagonist is not a neutral third party and delivers an opinion document and speech in an institutional context that constrains the antagonist’s potential wish to react to the standpoint and arguments delivered, Brewer’s (1996: 923-1028) three stages of analogy argumentation are not directly applicable. One should keep in mind that this is a monologue, and that, thus, those three stages of argumentation are implemented in the complex of argumentation (Van Eemeren & Garssen, 2014: 44-47; & Feteris, 2009: 93-114).

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