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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