A Student's Guide to Legal Analysis: Thinking Like a Lawyer

by McFadden, Patrick M.

• ISBN13: 9780735523951
• ISBN10: 0735523959
• Format: Paperback
• Copyright: 2001-05-01
• Publisher: Wolters Kluwer Law and Business

Summary

Provides law students with a way of organizing and thinking about their coursework and about the cases, laws, and regulations they confront every day. a concise, accessible text designed to aid all law students regardless of subject matter based on the premise that despite the law's complexity, there are three primary questions that recur in different guises throughout legal practice: -Is there a law?- Has it been violated?- What will be done about it? brings order To The chaotic stream of legal issues that law students confront in the cases and materials they study introduces the dynamics of legal argument gets students to recognize the basic questions posed in a legal dispute as well as the predictable reasons lawyers give for reaching one resolution or another contains a helpful glossary of legal terms and extensive Index, As well as a list of suggested readings

Table of Contents

Acknowledgments	xiii
Introduction	xv
The Only Three Questions in Law
The Law and the World	2	(8)
The Law's Concern	2	(2)
Obligation and Right	4	(3)
Status and Contract	7	(2)
The Known and the Unknown	9	(1)
The Only Three Questions in Law	10	(5)
The Questions	11	(1)
The Three Questions, As Seen by Clients and Law Students	12	(3)
In Summary	15	(3)
Is There a Law? (Questions of Obligation and Right)
Has an Obligation or Right Been Created at All?	18	(28)
Problems in Private Creation	21	(12)
Problems of Public Creation	33	(13)
Has the Obligation or Right Been Transferred, Modified, or Terminated?	46	(10)
Has the Obligation or Right Been Transferred?	46	(5)
Has the Obligation or Right Been Modified?	51	(2)
Has the Obligation or Right Been Terminated?	53	(3)
In Summary	56	(6)
Has the Law Been Violated? (Questions of Liability)
Who Decides Whether an Obligation or Right Has Been Violated?	62	(10)
Private Decisionmaking	62	(2)
Public Decisionmaking	64	(8)
How is the Liability Decision Made?	72	(5)
What Procedure Is Required?	73	(2)
Have the Required Procedures Been Followed?	75	(1)
What Will Be Done about Procedural Violations?	76	(1)
Was the Obligation or Right, in Fact, Violated?	77	(43)
What Does the Law Require?	81	(17)
What Are the Facts?	98	(9)
How Does the Law Apply to the Facts?	107	(13)
In Summary	120	(4)
What Will Be Done About A Violation of Law? (Questions of Remedy)
The World of Remedies	124	(7)
How Remedies Work	124	(3)
The Two Great Questions of Remedy	127	(1)
Remedies, Courts, and Others	128	(3)
What Remedies Are Available?	131	(18)
The Remedies of Public Law	132	(5)
The Remedies of Private Law	137	(12)
How Can the Available Remedies Be Enforced?	149	(16)
The Enforcement of Public Law Remedies	150	(6)
The Enforcement of Private Law Remedies	156	(6)
The Problem of Delay	162	(3)
In Summary	165	(4)
From Questions to Answers (On Legal Argument)
In the Trenches	169	(4)
Truth	170	(1)
Precision	171	(1)
Coherence	171	(1)
Logic	172	(1)
Big Argument	173	(16)
Law and Morality	174	(3)
Law and Policy	177	(5)
Deference	182	(4)
The Sanctity of Rules	186	(3)
Tradition and Change	189	(1)
In Summary	189	(2)
Glossary	191	(6)
Suggested Readings	197	(2)
Index	199