Making the Case: An Argument Reader

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9780130154002: Making the Case: An Argument Reader

Focusing on legal issues, this book promotes the skills of written argument by stimulating readers to think and write about actual, compelling court cases. Its application of general rules to specific disputes provides an ideal approach to the development of logical thought and argument. Each chapter features broad and narrow issues of conflict to help explore the roles of jury members, prosecutors, and defense attorneys—and explain how to make claims (i.e., arrive at verdicts), based on support (the facts and evidence of the case itself), applying standards (the relevant laws). General issues include law and society, arguing effectively, emotional distress, homicide, freedom of speech, search and seizure, and sexual harassment. Sub-issues cover law and engagement rings, hot coffee spills, parental failure to control children, skiing accidents, barroom brawls, and high school sports injuries. For individuals interested but untrained in the law, fascinated by human drama, and curious about our duties and responsibilities to other people and our society at large.

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From the Inside Flap:

Preface

Making the Case is a composition reader focused on legal issues. It aims to help you develop your skills in written argument by stimulating you to think and write about compelling cases that have actually appeared before the courts.

You may have an image of the law as impossibly complex, musty, and boring, and—let's face it—much of it is, even to lawyers. But if you peer beneath the sometimes intimidating language-here reduced to a bare minimum-you can often discern the outlines of intense human drama. Viewed in one way, legal cases are stories. They are morality tales. A has done something wrong to B. B claims injury. A denies the charge. A may be a person or a company. B may be a person, or a company, or the government—speaking for "the people." A and B hire champions to argue their cases. An impartial judge and jury hear the opposing arguments. They take account of the facts. They take account of the law that applies to these facts. And they make a decision. Using the material in this book, you will be called on to make these decisions—and to explain why you decided as you did.

Legal cases are rooted in conflicts, and most conflicts are inherently dramatic and interesting. These conflicts often raise questions about our duties and responsibilities to other people and to society at large. Writing about legal disputes is an ideal approach to developing your skills at logical thought and argument. Roleplaying as jury members, as prosecutors, or as defense attorneys, you make claims (that is, arrive at verdicts) based on support (the facts and evidence of the case itself), and apply standards (the relevant laws). Writing about cases tends to be purposeful—in terms of arguing for a particular verdict—even as it implies larger ethical questions. And, usually, writing essays about particular cases is more enjoyable than writing about more general or theoretical issues.

Each chapter in this book focuses on a particular issue and comprises groups of related readings. While the main chapters focus on broad issues such as homicide, freedom of speech, and sexual harassment, a series of brief segments at the end of the book focuses on narrower issues: high school athletic injuries, hot coffee spills, parental responsibility for the destructive acts of their children. Each group of readings and cases focuses on a particular aspect of the issue in question. By reading and discussing such related cases, you may see how judgments on aspects of an issue (for instance, harsh and insulting language in emotional distress cases or the particular conditions of a claimed hostile work environment) are affected by the specific circumstances of the case, and you can compare and contrast such cases—in effect, using your judgments about one case as precedent for your judgments on another.

More general reading selections in each major chapter provide social, psychological, or historical contexts for the issue in question. For example, a chapter dealing with sexual harassment includes not only cases of sexual harassment that have been taken up by courts, and sections from the relevant statutes and the judge's instructions to the jury, but also passages from books or articles on the matter. Beginning with Chapter 3, each group of reading selections is preceded by an introductory headnote and is followed by a set of discussion and writing assignments: "For Deliberation and Argument."

Making the Case therefore allows you to practice the essential college-level and professional skills of analysis (applying one or more general principles or rules to one or more specific cases), comparison-contrast (examining key similarities and differences), summary (summarizing the relevant case or cases and the legal principles that apply), narration (relating the key events), definition (defining key legal concepts, such as negligence or malice), and evaluation (examining the evidence and determining how well it supports the conclusion being argued).

The texts of cases treated in Making the Case are drawn largely from primary sources on the law. The facts of each case derive from the narrative—and generally highly readable and interesting—sections of court decisions. These narratives are followed by extracts of the law that apply to that case, drawn from relevant codes and statutes and from the judge's instructions to the jury—instructions designed to explain key terms and concepts to people untrained in the law.

To encourage you to compose logical, well-supported, and well-written essays, Making the Case will introduce you to the IRAC (Issue, Rule, Application, Conclusion) approach to composing arguments. A typical writing assignment asks you to render a verdict on the case, explaining your reasoning in IRAC format. Often you will be asked to role-play—sometimes as a member of a jury, sometimes as a prosecutor or defense attorney faced with the task of writing a memo to your superiors or a closing argument to a jury. Other assignments are less structured, allowing you to explore the moral or personal dimensions of the case.

The opening chapter on law and society sets the law into the context of larger social concerns; selections explain how the American court system operates and how a variety of people view the world of law and lawyers. The second chapter focuses on composing arguments and provides a number of practical strategies for organizing your ideas and making your points effectively. A glossary of legal terms concludes the book.

In their readability and inherent interest, the cases presented in this book are not representative of those typically found in legal casebooks. But that is intentional. Someone once defined drama as life without the boring parts. You are about to plunge into the world of law—without the boring parts. A Note on the Appeals Process and the Case Descriptions in this Book

Most of the cases that appear in this book are culled from appellate court decisions—also called opinions—published in legal volumes called reporters.

Civil and criminal trials are conducted in lower courts, such as municipal courts, small claims courts, family courts, district courts, or superior courts. The party that sues is called the plaintiff; the party being sued is called the defendant. In some cases a trial court judge will, upon petition by the defendant, dismiss the case without trying it or hearing testimony. This summary judgment is handed down if the judge agrees with the defendant that the plaintiff does not have a cause of action—that is, cannot offer facts that, assuming they are true, show that the defendant has breached a legal duty. (For a fuller description of the American legal process, see Hricik, pp. 2-11).

A defendant who loses in a civil case is found liable and is subject to payment of monetary damages to the plaintiff. Examples of civil offences include assault, battery, infliction of emotional distress, trespass, negligence, invasion of privacy, defamation, violation of civil rights, fraud, breach of contract, and wrongful death. A defendant who loses in a criminal case is found guilty and is subject (depending on the seriousness of the offense) to payment of a fine, imprisonment, or in extreme cases, death. Examples of criminal offenses include burglary, robbery, extortion, rape, arson, kidnapping, and homicide.

Generally, the proceedings of lower court trials are not published, although transcripts are available from the court clerk. The losing party in the trial— the plaintiff or the defendant—may appeal the verdict, or a summary judgment, to the next higher level court, the appellate court. (The first name in a case—as in Smith v. Jones—is the name of either the original plaintiff, or, in some jurisdictions, if the case has been appealed, the petitioner for appeal. Thus, if Smith sues Jones, and Jones then loses and subsequently appeals, the appellate case may be called Jones v. Smith. If the appeals court reverses the trial court and finds for Jones, and then Smith appeals to a still higher court, the case once again may become Smith v. Jones.) If the court accepts the appeal—and it may not—the panel of judges constituting the appellate court will review the record of the case, as conducted in the trial court, along with the associated evidence, and will render a decision (representing the judgment of a majority of its members), either affirming the verdict of the trial court or reversing it. Appellate judges do not hear additional testimony from witnesses or gather additional evidence. The appeals court has none of the traditional "courtroom drama" of the trial court. The judges on the court render their judgment on the basis of briefs and oral arguments by the attorneys for the plaintiffs) and the defendant(s), as well as amicus curiae briefs (those submitted by interested parties) and of course the transcript of the trial itself. They base their legal analysis on both sstatutory law (passed by legislatures) and case law (legal opinions by judges that ser

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