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
Copyright © 2006 by Cengage Learning. The Cengage Learning logos are trademarks used herein under license.
Printed in the United States of America 1 2 3 4 5 07 06 05 ISBN: 0-324-12993-9
ALL RIGHTS RESERVED. No part of this work covered by the copyright hereon may be reproduced or used in any form or by any means—graphic, electronic, or mechanical, including photocopying, recording, taping, Web distribution or information storage and retrieval systems, or in any other manner—without the written permission of the publisher.
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.
It is necessary for the student to realize the distinction between causation as commonly applied in every day life, and causation as applied under the law. The law imposes liability under certain circumstances in which the factor at issue may merely be correlated to the effect.
Rule 5: Avoid Oversimplification by Considering Alternative Explanations
Every critical thinker avoids oversimplification. While all explanations of the real world require some simplification, there must be a limit. Typically, oversimplifications result from brief examinations of related findings. Suppose that somebody showed you in which particular courtrooms the county prosecutor tried his cases. Further suppose that in the courtroom that had air conditioning, the prosecutor had a conviction rate of 75 percent, and that in the courtroom that did not have air conditioning, the prosecutor had a conviction rate of 55 percent. One could hardly reach the conclusion that a courtroom with air conditioning caused the prosecutor to be more effective. Even if we ignore your not having started with a theory that prosecutors who try cases in courtrooms with air conditioning have higher conviction rates, you have oversimplified because (1) you have not thought of alternative explanations of the correlation between the findings, and (2) you have not looked at enough evidence. That particular prosecutor has probably tried cases in other courtrooms, so you would still have to decide whether there were enough data to determine whether air conditioning in a courtroom causes a particular prosecutor to be more effective.
One way to avoid oversimplifications is to try to go beyond what most people take at face value—go beyond the obvious. This is the beginning of the path of critical thinking.
Rule 6: Go Beyond the Obvious: Discover What Variables in the Evidence Changed the Outcome of the Case
To expand the example from above, if you want to find out why the local prosecutor happens to be more successful in one courtroom than in another, go beyond simple correlations and examine the underlying forces that actually determine the rate of conviction.
First of all, one might try to find out what types of cases are being held in each courtroom. Contrary to the layperson’s belief, courtrooms are usually designated to hear certain types of cases. The reasoning is that the judge presiding over the case should have some knowledge of the subject matter that reaches beyond the briefs of the attorneys. If the prosecutor in one courtroom is trying cases related to driving while under the influence of alcohol, and the prosecutor is handling cases relating to murder in another, it may have some influence on the conviction rate if the prosecutor has less experience with one type of case than another.
Another factor that should be analyzed is whether the judge in the courtroom is appointed or elected, and, if elected, is he or she running for reelection sometime in the near future. Unfortunately, elected judges may in fact be playing in the game of politics. This means that the particular judge may be more willing to conform to the community’s moral beliefs on election days than on non-election days, and therefore this would likely influence the conviction rate of the prosecutor.
A third factor, which should not be dismissed, is whether the particular issue being decided is receiving a large amount of publicity through the media. It was not too long ago that officers, prosecutors, and judges often turned their backs on cases involving driving while intoxicated. Nevertheless, in recent years, this has become a hot issue and has received an incredible amount of publicity. This has led to prosecution and tougher enforcement of the D.U.I. laws.
Given that the court system has a limited number of resources available to enforce the laws and punish those who break them, the allocation of these resources is shifted from issue to issue, and the “hot” issue is likely to be strictly enforced. Therefore, if the prosecutor is handling cases with issues that at the time are receiving a considerable amount of media attention, and there is public outcry for the enforcement of certain laws, his or her conviction rate will most likely be affected.
Finally, there may be political implications to the trying of cases. In your text there is a specific chapter on antitrust law. There is a discussion of the effect that antitrust laws have in limiting the acquisition of one company by another. Nevertheless, the rate at which the Federal Trade Commission will enforce these laws depends on the political mood in the nation. There was a time when the F.T.C. rigorously fought to disallow the mergers or acquisitions of companies when these controlled a significant portion of the market. During the Reagan years, however, it appeared that the F.T. C. was tolerating such acquisitions and mergers more than it had done previously. Therefore, if the political climate is leaning towards the enforcement or non-enforcement of certain laws, that climate will affect cases. Back to the example, if the political climate was to vigorously prosecute drug-related murders, than the prosecutors’ rate of conviction in that area would probably be affected.
Rule 7: Poke Holes in all Arguments—Even Your Own
A critical thinker always attempts to poke holes in every argument, even his or her own. This is particularly true when you are examining generalizations. Consider a common generalization that is dispelled in all business law and legal environment texts written by Miller, Jentz, and Cross: An oral contract is as valid as a written one, and always enforceable. Insofar as the law is concerned, under the Statute of Frauds, an oral contract will not be enforced if:
1. It is for the sale of land.
2. The contract cannot be performed within one year from the date of formation.
3. The contract involves a collateral promise, such as the promise to answer for the debt of another.
4. The promise is made in consideration of marriage.
5. The contract is for the sale of goods priced at over $500.
We see that in reality an oral contract can only be enforced under very limited circumstances. Therefore, if an oral contract were to fail within one of the five exceptions mentioned above, it would probably not be enforced.
Your job as a critical thinker is constantly to question the arguments, the evidence, casual theories, correlations, generalizations, and all-encompassing statements about how things work.
Rule 8: Realize What Your Value Judgements Are
Each of us has a set of values and therefore a set of value judgements about everything that we consider, whether we know it or not. Our values are formed by our parents, peers, schools, the books we read, our religious concepts, the movies we see, and a thousand other variables. A critical thinker can never change these past inputs, but every critical thinker can be aware of what his or her values are with respect to any given issue.
If you are examining arguments for and against abortion, your values may enter very strongly into your assessment of the validity of certain legal arguments and evidence. It is important that you are aware of how much your religious and family upbringing affects your views about what others say or write concerning this explosive topic.
If you are examining arguments for and against a new trade bill that will impose higher costs on foreign companies attempting to sell their goods in the United States, you must ask yourself whether you have certain values that cause you to want to keep foreign competition out of the United States. Perhaps your values are such that you are basically xenophobic (you dislike anything foreign) or perhaps you had a bad experience with a foreign product.
Another example is the analysis of a new bill, which would require factories to diminish their smog emissions by 50 percent. If your values encourage the belief that maximum production in businesses is essential, and that negative externalities, such as the pollution of the local water system, are merely a cost of doing business, then you will attempt to argue against the bill. In contrast, if you believe strongly that it is necessary to save the water system, even though it may cause a decrease in profits or the closing down of a plant, then your bias will be in favor of the new bill.
Therefore, in examining legal arguments, it is necessary to become aware of your own biases. This brings us to another rule of critical thinking.
Rule 9: Attempt to Conquer Your Biases
Biases and values are closely linked; our biases are the result of our values. They affect what we favor every time a situation affords us the power of choice. Of course, this carries over to our analysis of legal issues. If you have a bias against individuals who are in favor of a particular position with regard to a certain law, when you listen to a person making an argument in favor of that law or a case which supports that law, you may not listen or read those words with complete objectivity. You must recognize your biases in order to see the objective points made by such a person or in a written opinion.
You may have biases against strict product liability in tort law: when you examine the arguments outlining the case for strict product liability against the manufacturers of pharmaceuticals, you may not see through to the true argument because of your biases.
Rule 10: Define Your Terms
How often have you argued with someone only to discover that you were not talking about the same thing because each of you had a different definition of a key term? Consider an example. Someone tells you that obscenity in the last four years has been on the rise. Can you argue effectively with anyone about obscenity without defining what that term means? You have to state what actions are to considered obscene. You also have to state that you are talking about obscenity only in the United States. Only after such agreement can you discuss what has actually happened in the area of obscenity in this county.
One situation in which the definition of obscenity has been discussed is with the lyrics of a musical group called 2 Live Crew. In the case against the musicians in Florida in 1990, the state prosecutors argued that the lyrics of the music were degrading to women, explicit in their sexual context, and lacking in any artistic, political, or social values whatsoever. In contrast, the attorneys for the rap group argued that their work was not obscene in relation to the standards of the community, and furthermore that the lyrics were a form of expressing the environment to which they had been exposed. The attorneys for 2 Live Crew further argued that the lyrics were merely a social satire of the group’s surroundings. If one were to look at the lyrics in relation to another community not exposed to the surroundings of the group and in which that style of music was not prevalent, then the lyrics could be considered obscene. But if the lyrics were to be viewed in the context of those individuals who are most likely to listen to the music for its artistic value and musical quality, then the lyrics might not be considered obscene. In effect, the attorneys for the parties were arguing about the terminology and definition of the word “obscenity.” The test outlined by the Supreme Court is that the work must be viewed in light of the standards of the community.
Consider another example in which you are told that a company made large profits last year. What does that mean? What is the definition of “large?” Is it found in Webster’s Dictionary? Is it the definition of an accountant, who does not estimate the full opportunity cost of all factors of production? Is it the definition of a stockholder who received larger-than-normal dividends on the stock?
In order to be able to analyze a certain case or to make a legal argument, it is necessary to define certain terms because otherwise the argument may be too broad, or for that matter incoherent. Defining terms is always helpful, and even necessary, because it can explain seemingly “incorrect” answers and reclassify them as “correct.”
Rule 11: Beware of Prescriptive Arguments
Most Arguments consist of an issue, reasons, and a conclusion. That’s the beginning, middle, and end of the argument; you either agree with the conclusion or you don’t. But some arguments go past that, and add a later conclusion that is not necessarily based on the first conclusion. These secondary conclusions are called prescriptive arguments because they ask for action to be undertaken. In the legal arena, the arguments presented are often prescriptive. It is important to critical thinking that they are recognized as such. Consider someone trying to argue that a defendant was temporarily insane at the time he or she shot an individual. The attorney starts by pointing out that the defendant has been seeing a psychologist for the last two years. His or her conclusion is that this particular defendant has some emotional problems that need to be treated by a psychologist. His or her next conclusion in this argument is a prescriptive one: “Therefore, I believe that the defendant was temporarily insane when he shot the victim and should not be convicted.”
The statement that the defendant should be found not guilty because he was temporarily insane at the time of the crime is an added conclusion that goes beyond the basic assertion that the defendant has some emotional problems. Clearly one can agree with the first conclusion—the defendant has some emotional problems—without agreeing with the prescriptive conclusion that the defendant should be found not guilty because of temporary insanity.
Another way of viewing the distinction between these types of arguments is to note that one is a positive argument while the other is normative. A positive argument states an issue, the facts, and a conclusion without further prescriptive ideas. A normative argument includes a prescription about what should be done. Indeed, whenever you see or hear the word should, listen carefully for the normative argument. Normative arguments rely almost solely on people’s values, and therefore are the type of argument that is undesirable in the legal arena. When making a legal argument it is necessary to back it up with factual evidence. While an emotional argument may in some situations be helpful, standing alone, it will most likely prove to be fruitless.
Consider another example. Suppose that we give you the information that, in the last two years, the number of teenage pregnancies has increased by 15 percent. We can all draw the conclusion that the problem of teenage pregnancies is worsening. That conclusion is in the form of analysis. But if we add, “Therefore, the teaching of sex education in schools should be prohibited,” we are telling you something from the heart—our values have helped persuade us as to what should be done to rectify the situation. In the realm of normative statements, normative means value—laden.
The critical thinker will always separate the positive from the normative aspects of any argument or set of arguments. Normative, or prescriptive, statements calling for action require separate analysis and understanding. You may reject a prescriptive conclusion because you do not accept the validity of a set of supporting positive statements. Alternatively, you may reject a prescriptive conclusion merely because it does not comply with your system of values. You may agree, for example, that there has been an increase in teenage pregnancies, and that it is a serious problem. But you may be unwilling to accept a ban on the teaching of sex education in the classroom because there may be more effective means of lowering the pregnancy rate.
You do not have to accept any normative argument, but you should be aware of why you reject it, and be able to state clearly why your values do not allow you to accept it.
In conclusion, the critical thinker is the student who reaches beyond what is stated by the instructor in class. Critical thinking is in reality the only path that can, and should, be taken by the student in order to properly understand the material presented in any business law and legal environment text written by Miller, Jentz, and Cross. The student must analyze both sides of the argument. He or she must question not only the arguments made by the instructor and the textbook, but hose made by himself or herself. One must reach beyond the decision of the case by searching all aspects of the litigation. Look at the arguments being made, the political arena surrounding the lawsuit, and the morals of the society at that particular time. It is essential to delve into the arguments being made by each party of the suit, and understand their respective points of view. Distinguish between the factual arguments and the emotional ones. Weed out prospective arguments and go beyond the obvious. The critical thinker will not merely accept the decision of the case, but will also attempt to pierce the judgment and poke holes in the argument. It is necessary to question the justification given in the class, as well as those arguments made in your text.
By becoming a critical thinker, you will not only learn the material discussed in the textbook and in class, in a whole new dimension, but you will also develop an entirely new understanding of the cases in your text.
Summary of Rules for Critical Thinking
1. Engage in active information acquisition
2. Don’t jump to conclusions
3. Beware of tautologies and truisms
4. Causation in tort law
5. Avoid oversimplification by considering alternative explanations
6. Go beyond the obvious: discover what variables in the evidence
changed the outcome of the case
7. Poke holes in all arguments—even your own
8. Realize what your value judgements are
9. Attempt to conquer your biases
10. Define your terms
11. Beware of prescriptive arguments
How to Write a Successful Research Paper
Writing a successful research paper involves two processes—research and writing. Critical thinking is essential to good research, and following the rules discussed above can help you arrive at valid and significant conclusions. But no matter how carefully and thoroughly you have researched a topic and analyzed the results, you cannot write a successful research paper unless you can communicate your conclusions to others in written form.
In the remaining pages of this Handbook, we offer some tips on how to write a successful research paper. The first two rules deal with topic selection and research strategy, both of which are important elements in determining how successful your research paper will be. The remaining rules concern the writing process itself. Unfortunately, we are not born with writing skills. We must acquire them. The writing rules offered in this section are guidelines to good writing—no more, no less. The cardinal precept that you should always keep foremost in mind is that good writing communicates something—an idea, a concept, or other information—to the reader. In writing a research paper, as in all writing, communication with your reader should be your constant goal.
The first rule in writing a successful research paper is to plan ahead when selecting your topic.
Writing Rule 1: Plan Ahead When Selecting Your Topic
Selecting your topic is by far the most important decision you will make during your entire project. By exercising some care and foresight at this stage of the game, you can save yourself a lot of time and frustration later. First of all, select a topic that interests you. Bear in mind that you will be spending at least several weeks researching your topic. If your topic is dull and uninspiring, your research hours could be deadly. Moreover, if you are not interested in your topic, you will find it extremely hard to interest your reader in your topic when it comes time to write your research paper.
Second, limit your topic so that it is appropriate to the required length of your research paper and the time period in which you must complete the project. If you choose too broad a topic, you will have insufficient time to do the research necessary for significant conclusions. By definition, a research paper offers a contribution to scholarship; it contains new insights or new information. You need to limit your topic so that you can cover the relevant sources sufficiently in the time available.
Third, define your approach. How are you going to approach your subject? What will your “slant” be? What is your thesis? What do you want to prove or disprove? What will you be looking for during your research? The clearer your focus from the outset, the easier your labors will be. Your research task will be simpler because you will have a better idea of which research sources are directly relevant and which are extraneous to your topic. Your writing task will be easier because your approach to your subject will provide the structural basis for your paper.
Once you have selected your topic, you need to develop a research strategy so that you will have sufficient time for writing your paper.
Writing Rule 2: Develop a Research Strategy
Your first task in undertaking research is to locate the sources and materials that you need to study. In this effort, librarians can be your most useful allies. They can direct you immediately to the major bibliographies and general source works relevant to your topic. Before you do that, take a look at Appendix F in Business Law, Guide to Research in Business Law. In this appendix you will find a summary of the most useful sources for doing research in business law. Once you get started, you will undoubtedly find an abundance of sources and materials that are related to your subject. You will also undoubtedly find that you cannot possibly study all of them in the time allotted. Do not be daunted by this fact. Time constraints are part of life—we all face them every day in nearly every undertaking, social or professional. Look ahead to the date when the paper is due and make a time management plan. Set aside several blocks of time for library work, first to narrow the topic and find major sources, then several sessions to gather data. Look at your calendar and decide when you will write the first draft. Then allow time for revisions and polishing the paper before the final due date. Resist the temptation to write it the night before. Part of doing research is acknowledging the fact that you are operating under a time constraint and are planning accordingly.
Adequate coverage of source materials is essential to valid research results. But how do you know when you have adequately covered the sources? How many of the relevant and available documents must you examine before you can draw valid conclusions? Ideally, of course, you would study every document or source available. But in all likelihood, this will be impossible, given your time constraint. As a general rule, if you have covered two-thirds of the relevant data, you will be sufficiently grounded in your area of study to know what is and is not significant and to make valid conclusions.
Once you have covered at least two-thirds of the available research sources and feel confident that you have discovered sufficient evidence to justify your conclusions, then consider turning to the other part of your project—writing the research paper. One of the pitfalls of writing a research paper is getting “lost in the library,” as it were, and concentrating on continued research and analysis at the expense of writing. Remember that writing a good research paper takes time. Finding every item of data and covering every research source is a wonderful ideal, but don’t let your aspirations toward perfection work against your primary goal: completing a research paper in a specified period of time. Be wary of falling victim to what some have termed the “analysis to paralysis” syndrome—analyzing data and documents until decision-making becomes impossible. Knowing when to stop researching and start writing is essential to a good research strategy.
Writing Rule 3: Create an Outline before You Write
Before you start writing your paper, you will need to organize the results of your research and decide how to structure your presentation. The simplest way to do this is by creating an outline. The outline might consist of merely a few penciled notes; or it might be a full-fledged, detailed outline of your research paper. Its form is less important than its function—which is to clarify your thoughts and organize your presentation.
When creating an outline, it is helpful to distance yourself from your research efforts and view your topic from a broader perspective. Ask yourself the kinds of questions that someone unfamiliar with your topic might ask: What exactly is your topic? Why did you choose to study it? What is your central argument, or thesis? What evidence supports your conclusions? Why are your conclusions meaningful or significant? How does your research study relate to other scholarship in the field? In what way are your conclusions distinguishable from those of others? Such questions will force you to focus on the basic purpose of your research and the major conclusions that you have drawn—which is what your reader will want to know.
At a minimum, your outline should indicate the central thesis or idea of your paper, the major points you will be making in support of your central thesis or idea, the key data and sources supporting each major point, and your conclusion. The best outline will allow you to write your first draft without reference to your notes or other research sources. But don’t let your outline constrain your writing. Think of your outline as a kind of temporary “road map” that shows your point of departure, the route you plan to take, and your destination. Remember that the purpose of your map is to get you to your destination as smoothly and swiftly as possible. If it ends up taking you over rough roads or steering you in the wrong direction, modify the map until it serves your goals.
Writing Rule 4: Remember—A First Draft Is Only a First Draft
Generating your first draft will be the most difficult part of your writing project. Your task will be easier if your that a first draft is just that—a beginning draft. It is not your final word on the subject. Your first draft should be thought of as merely a first stab at getting your thoughts on paper. At this stage, the important thing is to put your ideas on paper quickly and without a great deal of agony. Don’t worry about spelling, sophisticated terminology, correct syntax, weak transitions, stylistic devices, and so on during your first draft. Once you begin to write, try not to stop. Follow your outline and let your ideas flow. If you reach a point at which you need to refer to your notes, leave a gap in your text to be filled in later and proceed with your next paragraph or section. The important point is to commit your ideas to paper. Awkward text or disjointed paragraphs and sections can be repaired later when you edit and polish your draft.
Once you have completed your first draft, read through it—aloud, if possible—and identify any problem areas. Examine your conclusions closely in light of the rules on critical thinking that were discussed earlier in this Handbook. Have you jumped to any conclusions? Have personal biases affected your conclusions in any significant way? Have you overlooked important variables that could affect the validity of your conclusions? To write confidently about your conclusions, you need to be certain that they are accurate and justified. Once you are satisfied that the substance of your paper is sound, than you can turn to the task of editing and revising your paper.
Writing Rule 5: Allow Plenty of Time for Revisions
Excellent research papers read smoothly, clearly, and persuasively. They are set in an aesthetically pleasing format; they are free of grammatical and spelling errors; and they reveal an appropriate, careful choice of words. They do not “lose” the reader in clumsy, confusing, or overly lengthy or boring sentences. Neither do they jar the reader’s senses by a series of short, staccato-like statements. Sentences, paragraphs, and sections flow smoothly and logically from one to the other. No point is understated or overstated. The paper concludes at the right time on just the right note.
Obviously, all of these qualities cannot be achieved on a first draft, even by the most clever, experienced writer. They require extensive, time-consuming revision. When planning your writing schedule, allow plenty of time for revising your first draft.
When revising your paper, apply Writing Rules 7 to 12 (which follow) to your writing. Change and correct your text as necessary in view of these rules. Also, have a dictionary, a handbook on English grammar and usage, a style manual, and a thesaurus close at hand. Use them. Careful revision is critical to the success of your paper, so don’t skimp on your editing and polishing efforts.
Remember that a cardinal tenet in writing a research paper is to communicate your results to your reader. The next writing rule therefore stresses the importance of keeping your reader in mind as you write.
Writing Rule 6: Be Reader Oriented
When writing and revising your paper, keep your reader in mind at all times. Make sure that your introduction explains clearly not only what your thesis and general results are but why they are significant. Also make sure that your introduction serves its second—but equally important—function, which is to capture the reader’s attention. The most important goal in all writing is to get, and hold, the reader’s attention. Unless you engage the reader in your subject at the outset, no communication can take place. Therefore, make your introduction interesting in whatever way you can—with a provocative or controversial statement, a humorous insight, or a concept that tantalizes the reader to read on.
When you are satisfied that your opening section will get your reader’s attention, then you need to concentrate on holding that attention. Topic sentences are a must in clarifying for your reader what you are discussing in each paragraph. Keep your reader in mind as you move from paragraph to paragraph by using effective transitions—you let him or her know where you’ve been and where you’re going. Similarly, at the end of major sections of your paper, pause for a moment. Use a sentence or two to summarize what you have been discussing and what you will be looking at next. If your paper is lengthy (over twelve pages or so), consider using subheadings to cue the reader to the content of each subsection.
A good conclusion to your paper is nearly as important as a successful introduction. Once you have said all you have to say about your subject, end the discussion. Concluded your paper. Summarize briefly for the reader your major points, or draw together the separate strands of your argument into a conclusive statement about your subject. Keep your conclusion brief and succinct, and strive to phrase your conclusion in a striking, memorable way. Remember, the conclusion is the last thing your reader will read about your subject.
A clear introduction, topic sentences, effective transitions, and a conclusion that pulls the parts of your paper together—these are the basics of a successful research paper. Once these basics are present, then concentrate on furthering your communicative efforts by applying the remaining writing rules.
Writing Rule 7: Use Your Own Words
Your writing will be more effective—and a much easier undertaking—if you express your ideas and conclusions in your own words, just as you would if you were telling someone about your project. After spending weeks in the library immersed in documents, data, and various scholarly works, it may be difficult to remember that it is you, and not Scholar A or Scholar B, who is writing the paper. Whenever you catch yourself imitating another’s style or using words or phrases that you would not ordinarily use in conversation, ask yourself how you would explain whatever point you are trying to make to a friend. Explain it out loud, just as if your friend were there beside you. Then write down what you have said. In general, write as if you were speaking. Use the kind of words that you would use when talking to another. If you don’t routinely use such terms as “moreover” or “indeed” or “however” in your conversations, don’t use them when writing.
Similarly, avoid using technical, field-specific terminology. Nearly every area of study has its attendant jargon and often highly specialized vocabulary. If it is necessary to use such terms in your writing, make sure that you define them clearly for your reader and use them consistently. If possible, avoid them. Take particular pains to avoid the kind of language used in government documents and memoranda—which can rise to dizzying heights of non-communication. This may require substantial translating ability on your part. Consider, for example, the following government directive, which was issued to government personnel in 1942 in the midst of World War II:
Such preparations shall be made as will completely obscure all Federal buildings and non-Federal buildings occupied by the Federal government during an air raid for any period of time from visibility by reason of internal or external illumination.
When President Franklin Roosevelt was told that government employees could not decipher the meaning of the memo, he did his best to clarify the message: he informed his aide to “Tell them, that in buildings where they have to keep the world going, to put something across the windows.” Although FDR’s prose in this instance was not memorable, it did serve to communicate the message. The point is, communication comes first; and this can best be achieved by using your own words.
Also, avoid using too many quotations. If you can paraphrase in your own words the content of a quotation just as effectively, do so. Quotations interrupt the flow of your text. Furthermore, your reader is primarily interested not in what your sources know but in what you have learned from them and how they relate to your thesis. Of course, if a quotation is particularly apt or illuminating of the point you are making, use it. A particularly apt quotation in the context of this paragraph is the following, from Ralph Waldo Emerson: “I hate quotations. Tell me what you know.”
Remember to identify your sources to the reader. If you use a direct quotation from an author, be sure to give the appropriate citation in the style—footnote, endnote or in-text citation—preferred by your instructor. If you discuss a theory or the results produced by another scholar, provide a citation to that work. Not giving credit for ideas or words is academic dishonesty and, if extreme, is considered plagiarism.
Writing Rule 8: Be Direct and to the Point
When writing a paper, be direct and to the point. Let your reader know exactly what you think and why, and express your thoughts in clear, simple language. If a smaller word works as well as a longer term, use it. For example, avoid saying utilize—say use instead. Similarly, say because rather than due to the fact that; now rather than at this point in time or at this juncture; help or ease rather than facilitate; first rather than initial; rest rather than remainder; about rather than approximately; and so on. Avoid trendy terms (seminal, paradigm, parameter, actualize, propensity, prioritize, vortex, etc.); they tend to confuse rather that clarify. Use short sentences that are easy for your reader to follow. Use the active voice (“The vice president accompanied the president”) rather than the passive (“The president was accompanied by the vice president”). The active voice is more direct, easier to understand, more forceful, and generally less wordy.
As you write and revise your paper, keep in mind the five Ws (who, what, when, where, and why) of journalists and news reporters. Keep reminding yourself that your primary task is to communicate to the reader only the essentials. Use only that information that is relevant to your thesis. Very likely, only half—or even less—of the copious amounts of information you have gathered will actually be useful in writing your research paper. No matter how fascinating a certain quotation or item of information may be, if it is irrelevant to your topic, don’t use it.
Writing Rule 9: Avoid Clutter
This writing rule is the counterpart of Writing Rule 9. Weeding the “clutter” out of your paper is simply another way to achieve the goal of direct communication with your reader. In revising your paper, look for and delete the following types of clutter:
1. Modifiers that are not essential for accuracy or clarity. Too many adjectives and adverbs can hide the “working words” (nouns and verbs) of your sentences.
2. Repetitious sentences or sections. Don’t bore your reader with overstatements.
3. Unnecessary table or illustrations. If you have included tables or illustrations in your paper, consider whether they are really necessary. Could you summarize in words the same information just as well?
4. Long, complex sentences. Use two—or more—shorter sentences instead.
5. Extraneous phrases, such as “I might add that” or “it should be pointed out that” or “it is important to note that.”
6. Any irrelevant statement or information.
Writing Rule 10: Be Convincing
Imagine for a moment that you are an attorney in a courtroom defending a client’s innocence. Your primary goal is not simply to tell the jury that your client is innocent, but to convince the jury of this fact. Similarly, in a research paper it is not sufficient to merely describe your topic and your conclusions to your reader. You need to support your conclusions with convincing evidence. Share significant sources with your reader. Describe them. Explain how they shed light on your topic and how they relate to your conclusions. Let your sources convince your readers, just as they convince you.
Also, avoid using too many qualifiers when you present your evidence. Qualifiers are words and phrases such as it would appear that, it seems, apparently, possibly, somewhat, perhaps, it may be that, it is often the case that, and the like. When you are uncertain about an item of information or event, a qualifier is necessary to avoid misleading the reader. Too many qualifiers, however, tend to lead the reader to suspect that you are reluctant to support your own argument. A good research paper is convincing, and, to convince your reader, a firm commitment on your part is necessary. Your choice of words needs to reveal this commitment.
Writing Rule 11: Pay Attention to Grammar and Style
When you are revising your paper, take time to look at grammatical errors. Check for noun-verb agreement, consistency in your use of tense, and split infinitives. Make sure that it is clear what word a modifier is modifying. Above all, check for correct spelling. Spelling errors are difficult to forgive because they can be so easily prevented. Misspelled words indicate carelessness and inattentiveness to the language—take pains to avoid them.
Evaluate your paper for its tone, or “sound” quality. Read it aloud, and listen to the ring of your words and sentences. Too many short sentences in a row will make your text sound choppy. To avoid this, vary the length of your sentences until they flow smoothly. Also evaluate your word choice. Have you used the same word repeatedly when a substitute is available? Check your thesaurus for vivid, precise equivalents.
A final note, thoughtful writers today use gender-inclusive language. A senator must heed the desires not of his constituents, but of his or her constituents. Admittedly, using gender-inclusive language sometimes can result in awkwardness. One of the simplest ways to circumvent the problem is to use the plural instead of the singular— “senators must heed the desires of their constituents.” In general, be inventive; rephrase your sentences until they read as smoothly as possible given this particular constraint.
Summary of Rules on How to Write a Successful Research Paper
1. Plan ahead when selecting your topic.
2. Develop a research strategy.
3. Create an outline before you write.
4. Remember—a first draft is only a first draft.
5. Allow plenty of time for revising.
6. Be reader oriented.
7. Use your own words.
8. Be direct and to the point.
9. Avoid clutter.
10. Be convincing.
11. Pay attention to grammar and style.