Thinking Like a Lawyer : A New Introduction to Legal Reasoning

by Schauer, Frederick F.

• ISBN13: 9780674032705
• ISBN10: 0674032705
• Format: Hardcover
• Copyright: 2009-04-27
• Publisher: Harvard Univ Pr

Summary

This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof. In addressing the question whether legal reasoning is distinctive, Frederick Schauer emphasizes the formality and rule-dependence of law. When taking the words of a statute seriously, when following a rule even when it does not produce the best result, when treating the fact of a past decision as a reason for making the same decision again, or when relying on authoritative sources, the law embodies values other than simply that of making the best decision for the particular occasion or dispute. In thus pursuing goals of stability, predictability, and constraint on the idiosyncrasies of individual decision-makers, the law employs forms of reasoning that may not be unique to it but are far more dominant in legal decision-making than elsewhere. Schauerrs"s analysis of what makes legal reasoning special will be a valuable guide for students while also presenting a challenge to a wide range of current academic theories.

Table of Contents

Preface	p. xi
Introduction: Is There Legal Reasoning?	p. 1
Rules-in Laws and Elsewhere	p. 13
Of Rules in General	p. 13
The Core and the Fringe	p. 18
The Generality of Rules	p. 24
The Formality of Law	p. 29
The Practice and Problems of Precedent	p. 36
Precedent in Two Directions	p. 36
Precedent-The Basic Concept	p. 37
A Strange Idea	p. 41
On Identifying a Precedent	p. 44
Of Holdings and Dicta	p. 54
On the Force of Precedent-Overruling, Distinguishing, and Other Types of Avoidance	p. 57
Authority and Authorities	p. 61
The Idea of Authority	p. 61
On Binding and So-Called Persuasive Authority	p. 67
Why Real Authority Need Not Be "Binding"	p. 75
Can There Be Prohibited Authorities?	p. 77
How Do Authorities Become Authoritative?	p. 80
The Use and Abuse of Analogies	p. 85
On Distinguishing Precedent from Analogy	p. 85
On the Determination of Similarity	p. 92
The Skeptical Challenge	p. 96
Analogy and the Speed of Legal Change	p. 100
The Idea of the Common Law	p. 103
Some History and a Comparison	p. 103
On the Nature of the Common Law	p. 108
How Does the Common Law Change?	p. 112
Is the Common Law Law?	p. 117
A Short Tour of the Realm of Equity	p. 119
The Challenge of Legal Realism	p. 124
Do Rules and Precedents Decide Cases?	p. 124
Does Doctrine Constrain Even If It Does Not Direct?	p. 134
An Empirical Claims	p. 138
Realism and the Role of the Lawyer	p. 142
Critical Legal Studies and Realism in Modern Dress	p. 144
The Interpretation of Statutes	p. 148
Statutory Interpretation in the Regulatory State	p. 148
The Role of the Text	p. 151
When the Text Provides No Answer	p. 158
When the Text Provides a Bad Answer	p. 163
The Canons of Statutory Construction	p. 167
The Judicial Opinion	p. 171
The Causes and Consequences of Judicial Opinions	p. 171
Giving Reasons	p. 175
Holding and Dicta Revisited	p. 180
The Declining Frequency of Opinions	p. 184
Making Law with Rules and Standards	p. 188
The Basic Distriction	p. 188
Rules, Standards, and the Question of Discretion	p. 190
Stability and Flexibility	p. 194
Rules and Standards in Judicial Opinions	p. 196
On the Relation between Breadth and Vagueness	p. 200
Law and Fact	p. 203
On the Idea of a Fact	p. 203
Determining Facts at Trial-The Law of Evidence and Its Critics	p. 206
Facts and the Appellate Process	p. 212
The Burden of Proof and Its Cousins	p. 219
The Burden of Proof	p. 219
Presumptions	p. 224
Deference and the Allocation of Decision-Making Responsibility	p. 229
Index	p. 235
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