Reason in Law

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) andLawrence 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

xi

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

(4)

The Law Is All Around Us

2

(1)

The Rule of Law Keeps the Peace

3

(1)

The Critical Importance of Judicial Impartiality

3

(2)

A Definition of Law

5

(3)

A Definition of Legal Reasoning

8

(1)

Legal Reasoning Does Not Discover the ``One Right Answer''

9

(1)

The Structure of Legal Reasoning

9

(4)

Case Facts

10

(1)

Social Background Facts

10

(1)

Rules of Law

11

(1)

Widely Shared Values

11

(2)

Sources of Official Legal Texts

13

(1)

The Choices that Legal Reasoning Confronts

14

(2)

Illustrative Case

16

(4)

Questions about the Case

20

(1)

Change and Stability in Legal Reasoning

21

(15)

Sources of Unpredictability in Law

23

(5)

The Disorderly Conduct of Words

23

(1)

The Unpredictability of Precedents

24

(4)

Is Unpredictability in Law Desirable?

28

(1)

Vertical and Horizontal Stare Decisis: A Stabilizing and Clarifying Element in Law

29

(2)

Illustrative Cases

31

(4)

Questions about the Cases

35

(1)

Common Law

36

(32)

Origins of Common Law

36

(2)

Reasoning by Example in Common Law

38

(10)

The Cherry Tree

40

(4)

The Pit

44

(1)

The Diving Board

45

(3)

Keeping the Common-Law Tradition Alive

48

(11)

Making Common Law without Close Precedents

49

(4)

Horizontal Stare Decisis in Common Law

53

(6)

The Common-Law Tradition Today

59

(5)

Illustrative Case

64

(3)

Questions about the Case

67

(1)

Statutory Interpretation

68

(38)

What Are Statutes?

68

(3)

Four Misguided Approaches to ``First Instance'' Statutory Interpretation

71

(13)

Literalism: Sticking to the Words

72

(2)

The Golden Rule

74

(2)

Canons of Statutory Construction

76

(2)

Legislative Intent

78

(6)

Purpose: The Key to Wise Statutory Interpretation

84

(7)

The Centrality of Statutory Purpose

85

(1)

Determining Purpose: Words Can Help

86

(1)

Determining Purpose: The Audience

86

(1)

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

87

(1)

Illustrations of Statutory Purpose

87

(4)

A Final Complication

91

(1)

Stare Decisis in Statutory Interpretation

91

(10)

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

93

(5)

The Case against Increased Adherence to Precedent in Statutory Interpretation

98

(3)

A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation

101

(1)

Illustrative Case

101

(4)

Questions about the Case

105

(1)

Interpreting the United States Constitution

106

(28)

``The Supreme Law of the Land''

107

(4)

Conventional Legal Reasoning in Constitutional Interpretation

111

(5)

Words as Channels of Meaning

111

(3)

Original Intent and Purpose

114

(1)

Stare (In) Decisis

115

(1)

Judicial Review and Democratic Theory

116

(8)

Theories of Judicial Self-Restraint

118

(3)

Political Constraints on the Court

121

(3)

The Turn to Individual Dignity

124

(1)

Illustrative Case

125

(6)

Questions about the Case

131

(3)

Law and Politics

134

(24)

The Rule of Law

134

(2)

Three Threats to the Rule of Law

136

(6)

Democracy

136

(2)

Attacks on Judicial Legitimacy

138

(2)

National Crises

140

(2)

The Rule of Law as Liberal Justification

142

(16)

A Recap

142

(1)

Impartiality and Trust

143

(1)

Impartial Judgment

144

(4)

The Value of Impartiality

148

(2)

Applying the Theory

150

(5)

Illustrative Case

155

(3)

Appendix: Introduction to Legal Procedure and Terminology

158

(5)

Credits

163

(2)

Index

165

(6)

Index of Cases

171

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Summary

Table of Contents

Supplemental Materials