Qualitative

empirical research in legal writing:

The example of exemplary reasoning

Legal Writing Institute Conference, Portland, OR, July 13, 2016

Presentation, annotated bibliography, and these handouts available at http://tiny.cc/LWI2016 (case-sensitive URL)

Handout Part I: Theoretical frame

Originating question and rationale
Originating question: Do the analogical arguments of lawyers and judges exhibit characteristics of valid legal
arguments, i.e., characteristics sufficient to give them rational force?
Rationale: Legal theory/philosophy/jurisprudence anticipates that legal arguments will have rational force.
Arguments from analogy play a considerable role in legal arguments (at least in common law systems). If such
arguments do not have rational force, legal theory must be adjusted to account for this fact.
Exemplary argument schema (EAS)
Major Premise:
Case 1 is similar to Case 2, in that both have f1fn.
Relevant Similarity Premise: Features f1fn are relevant to legal category A.
Minor Premise:
Legal category A applies to Case 1.
Conclusion:
Legal category A applies to Case 2.
Critical questions
1. Do Case 1 and Case 2 actually have f1fn? (Is the major premise true?)
2. Are f1fn relevant to A? (Is the relevant similarity premise true?)
3. Does legal category A apply to Case 1? (Is the minor premise true?)
4. Are there dissimilarities between Case 1 and Case 2 relevant to A?
5. Is there some Case 3 that is also similar to Case 1 (in that both have f1fn) except that A is not applied in
Case 3?
Example: Vehicle in the park
Case 1: Vehicle. No discussion by court.

Case 3: Vehicle. More like a car than a bicycle.

Case 2: Not vehicle. Court says: Not self-propelled.

Case 4: ? Bicycle with auxiliary electric motor that was
not in use at the time of the citation.

Brian N. Larson, JD, PhD,
A Unit of the University System of Georgia

@rhetoricked

www.Rhetoricked.com

An Equal Education and Employment Opportunity Institution

Handout Part II: Your research paradigm

(Distribute with Part I but not attached to it)
Quiz adapted from Merrigan and Huston (2014, p. 27).
Identify with one (and only one) statement in each block by placing a Post-It brand note of the appropriate
color in the box next to it.
(Approach Larson if you have color-blindness.)
Choose only ONE statement for each block, the one with which you most strongly agree.
You are not graded on this test, so DONT OVERTHINK IT!
PURPLE:
PINK:

YELLOW:


PINK:
YELLOW:

PURPLE:

I believe we all share one objective reality even though no

one person can grasp its entirety.
I believe that our realities emerge out of our individual
experiences and the groups most important to us: families,
work, religion, culture, etc.
I believe social reality is shaped linguistically and through
sociological, economic, and political memberships in society.

Who you are as a person will subjectively influence what you

interpret as right and meaningful.
Your standpoint as an individual primarily reflects the broad
cultural, political, and economic class memberships to which
you belong.
The same set of truths is discoverable by anyone who wants
to find out.

YELLOW: I think that the purpose of gaining new knowledge through

research should be to uncover the power struggles in society
and to work for social change.
PURPLE: I think that the purpose of gaining new knowledge is fulfilled
when we accurately and objectively study reality.
PINK:
I think that the purpose of gaining new knowledge is
achieved when we understand how meaning is created,
particularly from the views of the people we are studying.

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Handout Part III: Thinking about how to code data

Instructions
1. Refer back to the originating question and its rationale (p. 1 of handouts).
2. Consider the specifying question: To what extent (if any) do lawyers briefs and court opinions relating
to motions for summary judgment in copyright cases adjudicated in filed opinions between 2010 and
2015 provide evidence that legal writers use the exemplary argument schema (EAS) when making
arguments from analogy?
3. In the excerpt below, identify units of analysis, spans of text you believe should be coded for this study,
by underlining them or bracketing them.
4. Make notes in the margin about what things you would want to code on the units. What could be
interesting about them in light of the specifying question?

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Excerpt from Defendants Motion for Summary Judgment, 2012 WL 7681259 (S.D.Tex.)
To the extent Engenium claims copyright infringement on other portions of its code,
copyright law only protects copyrightable works, or products that are original to the
author. Feist, 499 U.S. at 348. A work is original if it was created by the author, as opposed
to being copied from another work. Id. at 345. The certificate of copyright is prima facie
evidence of copyrightability (as used in Feist), but even with the certificate of copyright the
accused infringer may rebut the prima facie case by offering evidence attacking the
originality of the claimed copyright as well as showing the work fell outside the scope of
protection provided by the certificate. Ocean Coast Props., 97 F.3d at 1513; Feist, 499 U.S.
at 348 (originality remains the sine qua non of copyright; accordingly, copyright protection
may extend only to those components of a work that are original to the author).

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In other words, if components of the Plaintiffs work did not originate from it as the author,
and were actually taken from other sources, those portions do not enjoy copyright
protection. Ocean Coast Prop., 97 F.3d at 1513. Thus, a work that enjoys copyright
protection, under a valid certificate of copyright, may not enjoy copyright protection in
every facet of its information or components if certain pieces are outside the scope of
protection based on the lack of originality of the Plaintiffs product. Fiest, 499 U.S. at 348
(the mere fact that a work is copyrighted does not mean that every element of the work
may be protected).

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Integral in this analysis is the scenes a faire doctrine which excludes copyright protection
from particular standard techniques that are required for the expression of ideas or
development of the product. Id. at 709. The Fifth Circuit describes scenes a faire processes
as expressions that are stock, common to a particular topic or that necessarily follow from
a common theme or setting. Engg Dynamics, 26 F.3d at 1342-43 (referencing Gates
Rubber Co., 9 F.3d at 838). Scenes a faire typically includes any aspect of development
dictated by the external factors such as particular business practices. DeCastro, Inc., 220
F.3d at 401. Scenes a faire elements do not enjoy copyright protection because granting
copyright protection to the necessary incidents of an idea would effectively afford a

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monopoly to the first programmer to express those ideas. Gates Rubber, 9 F.3d at 838
(10th Cir. 1993). Many aspects of computer programming fall under scenes a faire because
this is the result of the fact that a programmers freedom of design choice is often
circumscribed by extrinsic considerations such as... compatibility requirements of other
programs with which a program is designed to operate in conjunction; computer
manufacturers design standards; demands of the industry being serviced; and widely
accepted programming practices within the computer industry. Altai, 982 F.2d at 709-10.

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The fact that two programs contain the same efficient structure may as likely lead to an
inference of independent creation as it does to one of copying, for evidence of
independent creation may stem from a defendants standing as a designer of previous
similar works. Id. Such is the case here. The structure and display screens of Harmonix are
just as likely to be, and indeed are, independent creations because Carr was the functional
designer of both. The same is true for the code structure, spacing, placement, and
commenting because the code was created by the same programmer, Ross. Further,
neither Engenium nor Ross chose the structure, spacing, placement, and comments
because Ross used a programming function called PrettyPrinter that automatically formats
the structure, spacing, placement, and comments.

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Software programs such as Harmonix and Workbench work with SAP software in industry,
therefore a large portion of these products function as a product of SAP code as opposed
to author-developed code. Therefore only the portions of Workbench developed solely by
Engenium are even eligible for copyright protection and the portions involving SAP licensed
software and elements of scenes a faire do not fall under copyrightable material. See id.;
Ocean Coast Prop., 97 F.3d at 1513. Based on this legal principle, a vast majority of the
software for each party is uncopyrightable because it is SAP derived and SAP owned
programming that each SAP developer uses and licenses from SAP. In fact, many other
competing companies aside from Symphonic and Engenium also use these same programs
that Engenium now claims are being infringed upon by Symphonic, yet Engenium is only
asserting claims against Symphonic.

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Along these lines also are the widely accepted programming practices within the SAP
industry which typically include sharing of information between consultants and
programmers as well as using small amounts of code developed at previous contract jobs
and adapting it to or implementing in future projects. Many SAP programmers work on
multiple projects for numerous companies and naturally it is common place for
programmers to use skills, strategies, and even code created for past projects, and apply
the same skills, code, and coding techniques while working on future projects. In fact, only
two months ago Ross used some of the source code that he developed for Symphonic as
the foundation for a commissioned project at Chevron. Ross did so because it is a widely
accepted programming practice among SAP programmers to use basic code created
personally or at other projects so they do not have to reinvent the wheel every time.
Programmers do this for efficiency and to keep cost down.
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Handout Part IV: Using the coding guide

(Dont staple these bits together.)
Draft coding guide (simplified for this workshop)
1. Identifying units: Annotate each instance where the brief cites a case relating to a summary judgment
or copyright issue. Highlight or select only the citation, not any surrounding text.
a. Do not count consecutive citations to the same case if Id. or Id. at can be used for the second
and subsequent citations
b. Do not count a case cited in reference to another case as a separate unit.
c. Example: The following example provides only one unit (which is underlined).
The fourth factor considers harm to the market for the infringed work. Smith v. Jones, 453 F.3d
1123, 1130 (8th Cir. 2007). This factor must take account not only of harm [of type 1] but of
harm [of type 2]. Id. (quoting Harper & Row, 471 U.S. at 568).
2. Coding units: Select the case reference and review surrounding text to make the following coding
decisions:
a. citedfacts: Indicate whether the author of the artifact discloses any particular facts about the
precedent case (not merely a rule that points to factual considerations, but actual facts about
that case). 0=No, 1=Yes.
b. instantfacts: Indicate whether the author of the artifact expressly or implicitly compares facts in
the instant case with those in the precedent case. (This could include describing the facts in the
precedent case in such a way as to lead the reader to conclude they are they are comparable to
or contrast with instant-case facts stated earlier in the brief.) no=no comparison,
implied=implied comparison, yes=express comparison
c. relevance: Is any rationale for a rule covering the precedents or basis for finding the factual
comparisons/contrast relevant offered. 0=No, 1=Yes
d. outcome: Indicate whether the author of the artifact discloses the outcome on the issue of the
precedent case. 0=No, 1=Yes.

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Excerpt from Defendants Motion for Summary Judgment, 2012 WL 7681259 (S.D.Tex.) (cont.)
ii. Defendants Harmonix is an original product that does not incorporate substantial portions of the code
present in Engeniums product and therefore cannot qualify as a derivative work.
A violation of the Plaintiffs exclusive right to prepare derivative works entails copying of a substantial portion of
the original work and then producing a new product that with minor alterations. 106(2); Litchfield v. Spielberg,
736 F.2d 1352, 1357 (9th Cir. 1984). A work is only classified as a derivative work if the infringing piece
incorporates some portion of the copyrighted work to create the new work and this incorporation must render
the two products substantially similar. Spielberg, 736 F.2d at 1357. The Eastern District of Texas elaborated on
this statute as it applies to computer codes and held that the same standards apply: copying and substantial
similarity. Cent. Point Software, Inc. v. Nugent, 903 F. Supp. 1057, 1060 (E.D. 1995) (holding a derivative work
violation occurred because the infringing work served the same purpose and function of the original work, but
was infringing primarily because over 50% of the original works code appeared in the derivative work). Cases
finding copyright infringement under 106(2) have required a substantial amount of copying before the courts
will find that the work infringes upon the right to produce derivative works via the substantial similarity prong of
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the infringement analysis. See Spielberg, 736 F.2d at 1357 (citing Reyher v. Childrens Television Workshop, 533
F.2d 87, 90 (2d Cir. 1976) (failing to find derivative infringement because alterations were made to the original
product that changed the nature of the work); see also Montgomery v. Noga, 168 F.3d 1282, 1292 (11th Cir.
1999) (finding derivative right infringement upon finding that seventy percent of the infringing product was
derived from the original work).

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Symphonics software is undoubtedly founded in SAP derived programing while Engeniums code developed
through a customized approach. This fundamental difference leads to many variances between the two
products as discussed, supra, which prevents Engenium from successfully proving that a substantial portion of
its claimed copyright was incorporated into a derivative work. Additionally, only approximately 4% of Engenium
code could arguably be classified as present in Symphonics software,29 which also falls short of a violation of
106(2) because typically 50-70% of repeat code is needed before the courts find a violation of the plaintiffs
derivative rights. See Nugent, 903 F. Supp. at 1060; Montgomery, 168 F.3d at 1295. Based on the lack of
similarity between the two products, or even assuming some duplication in code occurred, Engenium cannot
prove that a substantial amount its derivative rights were violated either direct copying or through comparison
and evidence that a substantial portion, upwards of 50-70%, was incorporated into Symphonics software.
Therefore, Engeniums 106(2) claim fails as a matter of law.

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iii. Distribution of a copyrighted work did not occur because the Defendant did not copy the work and thus
could not distribute a copyrighted work

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Distribution infringements occur when a party copies a work protected by copyright then actually distributes it
to third parties. 106(3); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013-14 (9th Cir. 2001); Atl
Recording Corp. v. Howell, 554 F.Supp. 2d 976, 980-81 (D. Ariz. 2008). The action of distributing is given a plain
language definition and therefore does not include merely making available but instead requires actual
dissemination of a product that is actually infringing on a valid copyright. Perfect 10, Inc. v. Amazon.com, Inc.,
487 F.3d 701, 718 (9th Cir. 2007); Capitol Records, Inc. v. Thomas, 579 F.Supp. 2d 1210, 1218-19 (D. Minn. 2008);
Howell, F.Supp. 2d at 981.

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Engenium must prove it owned a valid copyright and this product was actually copied before it can approach its
106(3) claim, but even if Symphonic copied any of the items, Engeniums claim for a violation of its right to
distribute fails as a matter of law because Symphonic did not distribute the allegedly copied material to the
public. A violation under 106(3) does not occur when copyright material is merely copied but only takes place
once a infringing product is distributed. Howell, 554 F. Supp.2d at 982-84. Engenium cannot show evidence that
Symphonic copied its software but it also cannot point to an instance of distribution of allegedly infringing
product occurring in violation of 106(3). Without this proof, Engeniums claim for a violation of its distribution
rights under 106(3) fails as a matter of law.

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Coding worksheet
Line #: ____________________
Cited facts: _____________ (0/1)
Instant facts: _______________
(no/implied/yes)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)
Line #: ____________________
Cited facts: _____________ (0/1)
Instant facts: _______________
(no/implied/yes)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)
Line #: ____________________
Cited facts: _____________ (0/1)
Instant facts: _______________
(no/implied/yes)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)
Line #: ____________________
Cited facts: _____________ (0/1)
Instant facts: _______________
(no/implied/yes)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)
Line #: ____________________
Cited facts: _____________ (0/1)
Instant facts: _______________
(no/implied/yes)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)

Line #: ____________________

Line #: ____________________

Cited facts: _____________ (0/1)

Cited facts: _____________ (0/1)

Instant facts: _______________

Instant facts: _______________

(no/implied/yes)

(no/implied/yes)

Relevance: _____________ (0/1)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)

Outcome: ______________ (0/1)

Line #: ____________________

Line #: ____________________

Cited facts: _____________ (0/1)

Cited facts: _____________ (0/1)

Instant facts: _______________

Instant facts: _______________

(no/implied/yes)

(no/implied/yes)

Relevance: _____________ (0/1)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)

Outcome: ______________ (0/1)

Line #: ____________________

Line #: ____________________

Cited facts: _____________ (0/1)

Cited facts: _____________ (0/1)

Instant facts: _______________

Instant facts: _______________

(no/implied/yes)

(no/implied/yes)

Relevance: _____________ (0/1)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)

Outcome: ______________ (0/1)

Line #: ____________________

Line #: ____________________

Cited facts: _____________ (0/1)

Cited facts: _____________ (0/1)

Instant facts: _______________

Instant facts: _______________

(no/implied/yes)

(no/implied/yes)

Relevance: _____________ (0/1)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)

Outcome: ______________ (0/1)

Line #: ____________________

Line #: ____________________

Cited facts: _____________ (0/1)

Cited facts: _____________ (0/1)

Instant facts: _______________

Instant facts: _______________

(no/implied/yes)

(no/implied/yes)

Relevance: _____________ (0/1)

Relevance: _____________ (0/1)

Outcome: ______________ (0/1)

Outcome: ______________ (0/1)

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Handout Part V: Pilot coding findings

Basic statistics

4 court opinions & 15 briefs coded (about 10% of total data)

700 case references (units) coded
Units per textMean: 37, median 27, sdev 27.5

Summaries

76 caserefs (10.9%) stated or implied facts from the cited case. (Major premise.)
73 caserefs (10.4%) stated or implied comparison of facts with current case. (Major premise.)
77 caserefs (11.0%) stated or implied outcome in precedent case. (Minor premise.)
69 (9.9%) exhibited all three of the preceding features. (Expressing or implying 2 of 3 premises.) 40, or
58% of those, were from 3 briefs in one case (B037, B038, and B039).
0 caserefs offered an express claim of relevance/ rationale. (Relevant similarity premise, but see
questions below.)
619 caserefs exhibited none of the EAS premises (neither expressing nor implying any of the premises).

Questions regarding pilot findings

A. How omitting can an enthymeme be? In the exemplary argument schema (EAS), if the minor premise
is omittedthat is, if we dont know the outcome in the cited casecan we say that the EAS is
evidenced at all?
B. Should the EAS be revised to treat the relevant similarity premise not as a premise but solely as the
grounds for a critical question? But note the potentially misleading use of the EAS in example 4.

EXAMPLES

Example from judges/lawyers text

1. Uses of the copyrighted work that stay within the
scope of a nonexclusive license are immunized from
infringement suits. John G. Danielson, Inc. v.
Winchester-Conant Props., Inc. , 322 F.3d 26, 41 (1st
Cir. 2003). (Doc B005 (PR), emphasis in original.)

2. Actual damages consist of the revenue that
would have accrued to plaintiff but for the
infringement. See e.g., Data General v. Grumman Sys.
Support Corp., 36 F.3d. 1147,1171 (1st. Cir. 1994). (Doc
B006 (PR), emphasis in original.)

Larson discussion
1-2. I refer to this type as a borrowed rule after
Murray and DeSanctis. The authors probably need a
statement of black letter law for rules they will apply
later, so they choose authoritative courts and state
their articulation of the rules. There is no indication of
how the precedent cases turned out. The authors are
not urging similar outcomes here, just that the same
rules be applied. This is the most common pattern
among the caserefs, and it does not exhibit any
characteristics of the EAS.

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EXAMPLES

Example from judges/lawyers text

3. In DeCastro, Computer Management Assistant Co.
(CMAC), licensed DeCastro to sell a software product
then later filed copyright infringement claims against
him when he used his experience with CMAC to
modify a different companys software product. The
court found the two software programs substantially
different, even though they served the same purpose,
because the modifications found in the defendants
product provided a different way of operating in a
similar fashion as the original product. In fact, even
though the new program contained portions of code
that potentially came directly from the first program,
the customization and modifications created a
difference between the two products showing that any
alleged copying was not so extensive that it rendered
the offending and copyrighted works substantially
similar. The facts of this case are nearly identical.
These allegedly copied items make up approximately
one percent (1%) of the 27,313 lines of source code in
Harmonix. The items make up approximately four
percent (4%) of the Workbench source code. (Doc.
B009 (TX), emphasis, except underlining, in original.)

4. Instead, the court must make a qualitative
judgment about the character of the work as a whole
and the importance of the substantially similar
portions of the work. Whelan Associates, Inc. v. Jaslow
Dental Lab., Inc., 797 F.2d 1222, 1245 (3d Cir. 1986);
Atari, Inc. v. North American Phillips Consumer
Electronics Corp., 672 F.2d 607, 618 (7th Cir.); see
also Universal Pictures v. Harold Lloyd Corp., 162 F.2d
354 (9th Cir.1947) (finding copyright violation for
copying of 20% of plaintiffs film); In re Personal
Computers and Components Thereof, 1983-84
Copyright L.Dec. (CCH) 25,651 at 18,931 (Intl Trade
Commn Mar. 9, 1984) (18%-25% identity is sufficient
for substantial similarity); Elsmere Music, Inc. v.
National Broadcasting Co., 482 F.Supp. 741, 744
(S.D.N.Y.), affd, 623 F.2d 252 (2d Cir.1980) (similarity
uncontested by defendants where four notes out of
100 measures and two words out of 45 were
identical). (Doc. B011 (TX), emphasis in original.)

Larson discussion
3. Here, the author is comparing the facts from the
DeCastro case, which addressed an issuesubstantial
similarityalso before this court. It summarizes the
facts in DeCastro (major premise) before pivoting on
the outcome of DeCastro (underlined text, minor
premise) and switching to an exposition of the facts in
this case (major premise). Note how it starts with
specific names of the parties (DeCastro and CMAC),
but then switches to general terms (plaintiff and
defendant); this makes it easier to infer the
conclusion: that the defendants copying in this case
did not rise to the level of substantial similarity. The
argument is an enthymeme because it omits the
conclusion, though it leaves little doubt. And like all
the examples of exemplary reasoning in this pilot
study, it is also enthymemic in that it never addresses
the relevant similarity premise. It almost seems a given
that if the precedent required resolution of the same
legal issue as the current case, relevant similarity is
assumed. In the EAS, it might best be regarded as a
critical question rather than part of the schema.

4. Much like the authors in examples 1 and 2, the

author here is seeking a black letter statement of the
law, but apparently the Fifth Circuit (which would be
binding precedent in this Texas case) could not provide
the answer. Consequently, the author cites two other
circuits (3rd and 7th) for the assertion. Note that this
brief discusses facts about the current case (major
premise) in text adjacent to this excerpt, but not
printed here. The remaining three caserefs represent a
complicated mix. In the first, we learn some facts
about the precedent (major premise) and its outcome
(finding violation, minor premise). The second
presents a problem; it states a threshold (18-25%) that
is sufficient, but does not say whether that case
reached the threshold. The author may inadvertently
have omitted that fact, or she may tactically have
omitted it if the case went the wrong way. The final
case reference is to one where similarity was
uncontested, but it is contested here; the case is
inapposite and should not form the basis of an EAS.

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