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Hypothesis Formation and Testing in Legal Argument12 Kevin D. Ashley

Summary: Hypothesis Formation and Testing in Legal Argument12
Kevin D. Ashley
Professor of Law and Intelligent Systems
Senior Scientist, Learning Research and Development Center
University of Pittsburgh
Formulating hypotheses about natural phenomena and testing them against empirical data have
long been cornerstones of the natural sciences. As a cognitive framework, hypothesis formation
and testing also play important roles in mathematical discovery and in legal reasoning, especially
as illustrated in oral arguments before the United States Supreme Court. A hypothesis is a
tentative assumption made in order to draw out and test its normative, logical or empirical
consequences. A hypothetical is an imagined situation that involves a hypothesis; it is a tool for
drawing out those consequences. In Supreme Court oral arguments, the hypotheses are an
advocate's proposed test or standard for deciding a case. The Justices pose hypotheticals to probe
the advocates' tests, assessing their meaning, consistency with past decisions, and their legal and
policy implications. In challenging a proposed test by posing hypotheticals, the Justices sometimes
induce the advocate to modify or abandon the hypothesis. This paper presents a model of the role
of hypotheticals in assessing legal hypotheses and illustrates it with examples drawn from actual
Supreme Court oral arguments. A study of these examples and of jurisprudential models has led to
a more complete schematization and model of the process of framing and testing legal hypotheses


Source: Ashley, Kevin D. - Learning Research and Development Center, University of Pittsburgh


Collections: Computer Technologies and Information Sciences