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Reason in Law

by ;
Edition:
6th
ISBN13:

9780321085603

ISBN10:
0321085604
Format:
Paperback
Pub. Date:
1/1/2002
Publisher(s):
Longman

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Summary

This lively and insightful book is a must-read for anyone interested in understanding why judges made the decisions they did in such current cases as the the Alabama federal courthouse Ten Commandments case, "Ashcroft v. Oregon" (Oregon's " right to die" law) and "Lawrence v. Texas" (constitutionality of sodomy laws). The book also examines recent legal controversies over internet music file-swapping and the targeting of " ordinary people" by record companies, internet pornography, the Pledge of Allegiance, and Victoria's Secret. What Legal Reasoning Is, and Why It Matters; Common Law; Interpreting The United States Constitution; Law and Politics; Introduction to Legal Procedure and Terminology; Bush v. Gore. Anyone who wants to know more about recent legal controversies and why judges make the decisions they do.

Table of Contents

Preface ix
About the Authors xiii
Reason in Law xv
What Legal Reasoning Is, and Why It Matters
1(20)
An Overview of Law and Politics
1(3)
A Definition of Law
4(3)
A Definition of Legal Reasoning
7(5)
Sources of Official Legal Texts
12(2)
The Choices That Legal Reasoning Confronts
14(2)
Illustrative Case
16(3)
Questions about the Case
19(2)
Change and Stability in Legal Reasoning
21(14)
Sources of Unpredictibility in Law
23(12)
The Disorderly Conduct of Words
23(1)
The Unpredictability of Precedents
24(1)
Reasoning by Example in General
24(1)
Examples in Law
24(1)
The Three-Step Process of Reasoning by Example
25(1)
How Reasoning by Example Perpetuates Unpredictability in Law
25(1)
An Illustration of Unpredictability in Law
26(1)
Reasoning by Example Facilitates Legal Change
27(1)
Is Unpredictability in Law Desirable?
28(1)
The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law
28(3)
Illustrative Cases
31(3)
Questions about the Cases
34(1)
Common Law
35(33)
Origins of Common Law
35(4)
Reasoning by Example in Common Law
39(9)
The Cherry Tree
40(4)
The Pit
44(1)
The Diving Board
45(3)
Keeping the Common-Law Tradition Alive
48(10)
Making Common Law without Close Precedents
49(3)
Horizontal Stare Decisis in Common Law
52(1)
Rightly Adhering to Precedent Because the Need for Stability and Reliance is Present
52(3)
Wrongly Adhering to Precedent When Stability Is Unnecessary
55(3)
The Common-Law Tradition Today
58(7)
Illustrative Case
65(2)
Questions about the Case
67(1)
Statutory Interpretation
68(36)
What are Statutes?
68(3)
Four Misguided Approaches to Statutory Interpretation
71(12)
Literalism: Sticking to the Words
72(1)
The Golden Rule
73(2)
Canons of Statutory Construction
75(3)
Legislative Intent
78(1)
Other Words in the Statute
79(1)
The Expressed Intent of Individual Legislators and Committee Reports
80(1)
Other Actions, Events, and Decisions in the Legislature
80(1)
The Perils of Legislative Intent
81(2)
Purpose: The Key to Wise Statutory Interpretation
83(8)
The Centrality of Statutory Purpose
84(1)
Determining Purpose: Words Can Help
85(1)
Determining Purpose: The Audience
86(1)
Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History
86(1)
Illustrations of Statutory Purpose
87(1)
Two Easy Cases
87(1)
The Case of the Lady Jurors, or Why Legislative Intent Does Not Determine Statutory Purpose
88(1)
Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers
88(2)
A Final Complication
90(1)
Stare Decisis in Statutory Interpretation
91(9)
Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business
92(5)
The Case against Increased Adherence to Precedent in Statutory Interpretation
97(3)
A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation
100(1)
Illustrative Case
101(2)
Questions about the Case
103(1)
Interpreting the United States Constitution
104(23)
``The Supreme Law of the Land''
105(3)
Conventional Legal Reasoning in Constitutional Interpretation
108(4)
Words as Channels of Meaning
108(2)
Original Intent and Purpose
110(2)
Stare (In) Decisis
112(1)
Judicial Review and Democratic Theory
112(8)
Theories of Judicial Self-Restraint
114(3)
Political Constraints on the Court
117(3)
The Turn to Individual Dignity
120(1)
Illustrative Case
121(5)
Questions about the Case
126(1)
Law and Politics
127(31)
Legal Reasoning as Liberal Justification
127(10)
A Recap
127(2)
Impartiality and Trust
129(1)
Impartial Judgment
130(4)
The Value of Impartiality
134(2)
Applying the Theory
136(1)
Legal Reasoning as a Public Language
137(17)
Law and Moralistic Communities: The Mann Act Revisited
139(4)
Law in Conditions of Diversity: Emerging Issues of Gay Rights
143(11)
Conclusion
154(1)
Illustrative Case
155(3)
Appendix A: Introduction to Legal Procedure and Terminology 158(5)
The Case
158(1)
Legal Terms
159(4)
Appendix B: Bush v. Gore 163(21)
Introduction
163(1)
The Protest Phase
164(4)
The Contest Phase
168(13)
Questions
181(2)
Conclusion: Why Legal Reasoning Matters
183(1)
Credits 184(1)
Index 185(4)
Index of Cases 189


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