Reason in Law

by Carter, Lief H

ISBN13:

9780321011114

ISBN10:

0321011112

Format:

Paperback

Pub. Date:

11/1/1997

Publisher(s):

Addison-Wesley

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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.

Preface

(2)

About the Author

xiii

1 WHAT LEGAL REASONING IS, AND WHY IT MATTERS

(20)

An Overview of Law and Politics

(2)

A Definition of Law

(3)

A Definition of Legal Reasoning

(5)

Three Ways to Classify Law

(4)

Formal Categories of Official Legal Texts

(1)

The Problems That Law Addresses

(1)

The Choices That Legal Reasoning Creates

(2)

Illustrative Case

(4)

Questions About the Case

(1)

For Further Thought

(2)

2 CHANGE AND STABILITY IN LEGAL REASONING

(16)

Unpredictability in Law

(5)

Reasoning from Words

(1)

Reasoning from Examples of Precedents

(4)

Stage One: Reasoning by Example in General

(1)

Stage Two: Examples in Law

(1)

Stage Three: The Three-Step Process of Reasoning by Example

(1)

Stage Four: How Reasoning by Example Perpetuates Unpredictability in Law

(1)

Stage Five: An Illustration of Unpredictability in Law

(1)

Stage Six: Reasoning by Example Facilitates Legal Change

(1)

Is Unpredictability in Law Desirable?

(1)

The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law

(3)

Illustrative Cases

(3)

Questions About the Cases

(1)

For Further Thought

(2)

3 STATUTORY INTERPRETATION

(41)

What Are Statutes?

(2)

Three Ways Judges Mistakenly Interpret Statutes

(8)

First Mistake: Sticking to the Literal Meaning of Words

(2)

Second Mistake: The Golden Rule

(2)

Third Mistake: Legislative Intent and Legislative History Idle Armchair Speculation

(4)

Other Words in the Statute

(1)

The Expressed Intent of Individual Legislators and Committee Reports

(1)

Other Actions, Events, and Decisions in the Legislature

(2)

Words, Intent, and History Do Not Reach "Correct" Interpretations

(8)

The Disorderly Conduct of Words

(1)

The Booming Canons of Statutory Construction

(3)

Judicial Naivete about the Legislative Process

(3)

How Judges Should Interpret Statutes in the First Instance

(8)

The Centrality of Statutory Purpose

(1)

Determining Purpose: Words Can Help

(1)

Determining Purpose: The Audience

(1)

Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History

(1)

Illustrations of Statutory Purpose

(3)

Three Easy Cases

(1)

The Case of the Lady Jurors, or Why Legislative Intent Does Not Necessarily Determine Statutory Purpose

(1)

Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers

(2)

A Final Complication

(1)

Stare Decisis in Statutory Interpretation

(10)

Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business

(6)

The Case Against Increased Adherence to Precedent in Statutory Interpretation

(3)

A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation

(1)

Illustrative Case

(1)

Questions About the Case

(1)

For Further Thought

(2)

4 COMMON LAW

(41)

Origins of Common Law

(4)

Reasoning By Example in Common Law

(12)

The Cherry Tree

(4)

The Pit

(1)

The Diving Board

(2)

Analyzing Cases

(1)

Changing Judicial Styles

(1)

Change in Law Itself

(2)

Keeping the Common Law Tradition Alive

(11)

Making Common Law Without Close Precedents

(3)

Horizontal Stare Decisis in Common Law

(7)

Rightly Adhering to Precedent Because the Need for Stability and Reliance Is Present

(3)

Wrongly Adhering to Precedent When Stability Is Unnecessary

102

(3)

The Common Law Tradition Today

105

(8)

Illustrative Case

113

(3)

Questions About the Case

116

(1)

For Further Thought

116

(3)

5 INTERPRETING THE UNITED STATES CONSTITUTION

119

(27)

"The Supreme Law of the Land"

120

(3)

Conventional Legal Reasoning in Constitutional Interpretation

123

(4)

Words as Channels of Meaning

123

(2)

The Intent of the Framers and the Purpose of Constitutional Provisions

125

(2)

Stare Decisis

127

(1)

Two Alternative Approaches to Constitutional Reasoning

127

(8)

Theories About Constitutional Justification

128

(3)

Political Constraints on the Court

131

(4)

Illustrative Case

135

(5)

Questions About the Case

140

(1)

For Further Thought

141

(5)

6 LAW AND POLITICS

146

(35)

Legal Reasoning as Liberal Justification

147

(9)

A Recap

147

(1)

Impartiality and Trust

147

(1)

Impartial Judgment

148

(4)

What Evidence Supports This Theory of Impartiality

152

(2)

Applying the Theory

154

(2)

Legal Reasoning as a Public Language

156

(18)

Law and Moralistic Communities: The Mann Act Revisited

158

(3)

Law in Conditions of Diversity: Emerging Issues of Gay Rights

161

(13)

Conclusion

174

(1)

Illustrative Case

175

(3)

For Further Thought

178

(3)

APPENDIX: INTRODUCTION TO LEGAL PROCEDURE AND TERMINOLOGY

181

(6)

The Case

181

(1)

Legal Terms

182

(5)

Credits

187

(2)

Index

189

(4)

Index of Cases

193

Reason in Law

9780321011114

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