Introduction to Critical Thinking and Writing
in Business Law and the Legal Environment
Guide to Accompany All Business Law and Legal Environment Texts
by Roger LeRoy Miller, Gaylord A. Jentz and Frank B. Cross
Guide prepared by Roger LeRoy Miller
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Most students think the keys to success in the classroom lie in taking and memorizing lecture notes, as well as reading a textbook and committing it to memory. Yet in order to truly learn from a course in business law, one needs to be able to think critically about the American legal system. Critical-thinking techniques, in addition to being applicable to legal arguments, are also important to virtually all disciplines. Critical thinking involves making judgments and decisions based on information from different sources.
In this Handbook, designed to accompany all business law and legal environment texts written by Roger LeRoy Miller, Gaylord A. Jentz, and Frank B. Cross, we present strategies in critical thinking that will allow you to truly learn the principles that you will be faced with in all business law and legal environment texts written by Miller, Jentz, and Cross. The techniques described in this booklet will help you separate reality from rhetoric in the information that comes from television, radio, newspapers, and any other sources of legal information. Throughout the pages that follow, we use examples that relate specifically to the American legal system. You should be able, nonetheless, to use the methodology of critical thinking presented here in all of your courses as well as in your day-to-day activities.
Defining Critical Thinking
Critical thinking involves the capacity to distinguish beliefs from knowledge, and facts from judgment. Someone skilled in critical thinking is able to analyze, criticize, and express ideas. He or she can also draw factual or judgmental conclusions based on inferences drawn from objective knowledge or personal beliefs. When a critical thinker draws a judgmental conclusion that is based in whole or in part on a personal belief, he or she should understand the extent to which this belief has influenced his or her judgment.
All of the above is a fancy way of saying that a person should find good reasons to reject or support a legal argument: The critical thinker first defines the problem, then examines the evidence, and always analyzes the assumptions underlying the evidence. Critical thinking is incomplete without considering alternative interpretations. Finally, the implications of different interpretations must be recognized.
Critical thinking consists, more that anything else, in adopting an attitude that is open to both sides of an argument, while proceeding with what might be called intellectual caution. Additionally, the critical thinker has to be prepared to accept defeat, which may involve having one’s cherished beliefs destroyed by someone else’s better-reasoned, and factually more correct, argument. Furthermore, the critical thinker must learn to appreciate the new point of view.
Critical thinking requires active participation in the learning process. Rather than reading every word written in a business law or legal environment text written by Miller, Jentz, and Cross and accepting it at face value, you, as critical-thinking student, must take an active role in questioning the author’s conclusions and those of your instructor. This brings us to our first rule in critical thinking.
Rule 1: Engage in Active Information Acquisition
Don’t be a passive acquirer of information. Don’t just sit in the classroom and take down every word the instructor says. Don’t read a textbook and accept everything in it as “the truth.” Critical thinking requires active questioning of most information offered. While you are taking notes in class, jot down questions in the margins. The same holds true when reading this and all other textbooks.
For example, a landmark case on advertisements is Lefkowitz v. Great Minneapolis Surplus Store, Inc., 86 N.W. 2nd, 689 (1957). The case concerns a newspaper ad offering fur coats, mink-skin scarfs, and a fur stole for sale on a first-come, first-served basis. Twice, Lefkowitz was the first person to demand the goods. On both occasions, the store refused to sell to him, indicating that the offer was intended for women only, even though the ads were directed to the general public. Lefkowitz sued the store for breach of contract, and the trial court awarded him damages. The conclusion that the careless student may draw from Lefkowitz is that all advertisements are offers. But all advertisements are not offers. In most cases, classified advertisements are treated as invitations to negotiate, not as offers to sell. The difference between the passive student reading this case and the critical thinker is that the passive student will not make the necessary distinction between the advertisement in this particular case and most other advertisements.
Remember that American law is not black and white, but, in reality, an endless scheme of gray. The cases which are presented must be construed in light of the evidence. Change in a single factor can change the outcome of a case. The critical thinker will go beyond what is state in the book, or what the instructor asserts in class, and will try to find a way in which the outcome of a situation can be altered. The cases that are presented in all business law and legal environment texts written by Miller, Jentz, and Cross were usually argued by intelligent litigators who had valid arguments for each of the outcomes. The critical thinker must be able to argue both sides of a particular case.
Rule 2: Don’t Jump to Conclusions
It is easy for individuals to jump to a conclusion with just a smattering of evidence or logic. To avoid jumping to conclusions, you have to look at the following:
1. The evidence
2. The specificity of the argument: is it too general?
3. Is there any alternative explanation (observational equivalence)?
Examine the Evidence
Unless one is dealing in pure logic in a course in philosophy, most hypothetical arguments about how the legal world works must be accompanied by some evidence to be convincing. When you examine arguments in our text or listen to them from your instructor, you must constantly ask, “Where is the evidence?” Then ask yourself “Is there more evidence?”
Consider the question of illegality of contracts. Some contracts are unenforceable because they are contrary to public policy. One of the most famous trials involving this question has been called the Baby M case, in which a couple hired Mary Beth Whitehead to become a surrogate mother in exchange for the payment of $10,000, plus all costs associated with the pregnancy and birth. If one were looking at the case merely as a contract between two parties, then it could be easily resolved. But, because of the emotional nature of the case, it actually became a highly complicated issue, which was decided in part based on standards of morality that the judges thought to be prevalent. Therefore, this case was not decided solely on the basis of whether there was a valid contract, but in fact was partly resolved by considering the moral codes of society. Should it make a difference whether a contract is for the services of a surrogate mother or for the sale of a car? In theory there should not be any difference under the law, but it reality there is always evidence which may not be presented but must be sought.
The point is that any issue demands evidence. You have to be aware of the possibility that you may not know all the evidence.
Specificity of the Argument
Is it possible that what you are reading or hearing is a generalization? Many legal arguments result in over-generalizations that do not apply in many situations. Consider some examples about gambling. The general view on gambling is that it is illegal in most states, and therefore the courts of those states in which gambling is illegal will not uphold contracts in which gambling is involved. This, for the most part, remains true if the contract is performed within the state in which gambling is illegal. For example, assume that an individual goes to an “underground” casino in State A where casinos are illegal. Furthermore, assume that this individual incurs large losses for which he or she signs a contract, whereby he or she promises to pay the owners of the casino for all the debts which the gambler has incurred. This individual may not have the contract enforced against him by the judicial system in State A or any other state, because gambling is illegal in State A. Nevertheless, if the same situation were to arise, but this time gambling were legal in State A, the contract may be enforced not only in State A, but in any other state that has jurisdiction over the matter. Even if the law suit is brought in a state in which gambling is not permitted, if the contract was performed in a state in which gambling is legal, it will be enforced.
Many arguments are presented that sound logically correct and seem to have evidence to support them. The problem, though, is that alternative explanations may be available. In the theory of scientific methodology, when such a situation occurs, we label it a case of observationally equivalent hypotheses. Take an example that is found virtually every day in the newspaper: What happened to the stock market yesterday? Almost every business page or every radio or television news commentator has something to say about what happened to the price of stocks yesterday. If stock prices went down yesterday, business commentators will cite various reasons—the dollar weakened, there was a threat of war in the Middle East, there was a threat of the steel unions going on strike, or something else happened. If stock prices went up yesterday, commentators might say the latest index of inflation showed it to be falling, the price of oil went down, or the president got over a cold. Neither the explanations of the evidence presented, nor the supporting arguments, are observationally distinguishable from those of any other explanation offered. There are many alternative explanations of why stock prices went up or down yesterday. Merely stating something that sounds logical means absolutely nothing.
Explaining why stock prices went up or down yesterday involves much more than stating something that sounds plausible. There are at least 100 plausible explanations of why stocks changed price yesterday. Only by focusing on a limited number of explanations, testing those explanations scientifically, and examining much evidence can we even hope to come up with a hypothesis that is not observationally equivalent to a dozen other hypotheses.
In the practice of law there will always be an argument that will sound logically correct. While this argument may make sense, there is always a counter-argument that may prove otherwise. This is precisely the reasoning of the theory of the adversarial procedure, by which both parties present their legally “correct” argument and then the case is decided. If this were not the situation, the American judicial process would be futile, in that there would be no room for interpretation. If an individual were to read the brief of the attorney representing client A, it is quite likely that it would sound logically correct. In contrast, if one were to read the opposing party’s brief, the same situation would arise. The reason for this is that the attorney will represent the case utilizing facts in the light most favorable to his or her client. While the argument may in fact sound logically correct, certain relevant factors probably could have been omitted or extended tenuously to seem helpful to the facts of the case.
Arguments do not end at the conclusion of the trial when the verdict is announced, but may continue throughout the appeals process as cases, or parts of cases, are overturned. We have observed Supreme Court decisions in which cases that appear to be similar often end up with different results. On many occasions, the Supreme Court has altered its views on a previous case, and made a ruling that was inconsistent with its prior decision. The reason is that, while superficially the cases may appear similar in nature, evidence that changes the outcome has appeared. In other words, there are other logically correct arguments that bring in new evidence not present in the past.
What may appear to be a logically correct argument will not necessarily provide the correct “answer,” because all factors must be taken into account. Producing encompassing, and therefore conclusive, evidence remains a rare occurrence.
Rule 3: Beware of Tautologies and Truisms
A problem similar to the one of observational equivalence of explanations about why something happens, involves tautologies and truisms. A tautology is a statement that repeats itself. For example, if you ask what the weather is going to do tomorrow, we could state: It is either going to rain, or it is not going to rain. That is a tautology. It is always a correct statement. Moreover, such a statement can never be disproved by any data. If the data showed that it rained, the statement is confirmed; if it didn’t rain, the statement is also confirmed. A truism is a self-evident truth, such as “Horses normally drink water when they are thirsty.”
Think about one element of the American Creed: In the United States, equal justice is to be found under the law. The sentiment behind this statement is certainly one that many Americans support as an ideal; however, it remains an ideal that may not prevail. Regardless of the placards in front of the court houses, the evidence in reality suggests that not everyone is treated and protected in the same manner. Those who can afford it are able to choose the best legal services available. Those individuals who are not financially secure have attorneys appointed to them by the court from the Office of the Public Defender. Although assistant public defenders may be highly qualified, they are often overburdened with large caseloads. Furthermore, if the defendant is convicted of a crime and sentenced to prison, he or she may either spend time at “Club Fed” or a maximum-security prison depending on his or her background. Finally, the severity of the punishment may, on many occasions, be influenced by one’s “standing,” or lack of it, in the community, thus violating equal protection under the law. The statement that all men and women are treated equally under the law, simply because a legal culture endorses the statement, is a classic example of a truism.
A critical thinker must avoid tautologies and truisms. They may be great for light cocktail-party conversations, but they do not help you, as critical thinker, get a better understanding of the world around you. When you start listening critically, particularly to people’s casual conversations, you may be surprised how many of the statements are merely truisms.
Rule 4: Causation in Tort Law
Many facts in the real world seem to be correlated. That is to say, the movement in one variable appears to mirror the movement in another, or one may appear to oppose the movement in another. We all know the correlation between regularly eating too much and gaining weight. There seems to be a correlation between smoking and contracting lung disease. When we think of who is at fault for gaining weight or contracting cancer, common sense dictates that it is the person who consumed the product, because he or she made the decision. Nevertheless, under the American legal system it is not necessary for the company or individual to be the direct cause of the incident for them to be liable. Furthermore, there does not have to be a specific intent on the part of the defendant to cause a particular action, which resulted in harm, as long as the defendant was the one who caused or helped to cause the injury.
In the well-known case of Texaco, Inc. v. Pennzoil Co., [729 S.W. 2d 768 (1987)], it was found that Texaco had wrongfully interfered with the Pennzoil-Getty Oil contract for sale and Pennzoil was awarded 7.53 billion in actual damages and another $3 billion in punitive damages. In this case, Pennzoil had made an offer to buy a controlling interest in Getty Oil. Prior to the signing of the formal contract, Texaco made an offer to Getty Oil, which was accepted, and the contract between Texaco and Getty Oil was immediately signed. Most people would believe that although it was unfortunate for Pennzoil, Texaco in reality was more aggressive, and, in actuality, did not commit a wrongful act. Under the American legal system, however, Texaco was the cause of the dissolution of the first arrangement and therefore liable under the tort of wrongful interference with a contractual relationship.