Reason in Law

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ISBN: 9780673522696 | 0673522695
Cover: Paperback
Copyright: 1/1/1994

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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	p. ix
About the Authors	p. xiii
Reason in Law	p. xv
What Legal Reasoning Is, and Why It Matters	p. 1
An Overview of Law and Politics	p. 1
A Definition of Law	p. 4
A Definition of Legal Reasoning	p. 7
Sources of Official Legal Texts	p. 12
The Choices That Legal Reasoning Confronts	p. 14
Illustrative Case	p. 16
Questions about the Case	p. 19
Change and Stability in Legal Reasoning	p. 21
Sources of Unpredictibility in Law	p. 23
The Disorderly Conduct of Words	p. 23
The Unpredictability of Precedents	p. 24
Reasoning by Example in General	p. 24
Examples in Law	p. 24
The Three-Step Process of Reasoning by Example	p. 25
How Reasoning by Example Perpetuates Unpredictability in Law	p. 25
An Illustration of Unpredictability in Law	p. 26
Reasoning by Example Facilitates Legal Change	p. 27
Is Unpredictability in Law Desirable?	p. 28
The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law	p. 28
Illustrative Cases	p. 31
Questions about the Cases	p. 34
Common Law	p. 35
Origins of Common Law	p. 35
Reasoning by Example in Common Law	p. 39
The Cherry Tree	p. 40
The Pit	p. 44
The Diving Board	p. 45
Keeping the Common-Law Tradition Alive	p. 48
Making Common Law without Close Precedents	p. 49
Horizontal Stare Decisis in Common Law	p. 52
Rightly Adhering to Precedent Because the Need for Stability and Reliance is Present	p. 52
Wrongly Adhering to Precedent When Stability Is Unnecessary	p. 55
The Common-Law Tradition Today	p. 58
Illustrative Case	p. 65
Questions about the Case	p. 67
Statutory Interpretation	p. 68
What are Statutes?	p. 68
Four Misguided Approaches to Statutory Interpretation	p. 71
Literalism: Sticking to the Words	p. 72
The Golden Rule	p. 73
Canons of Statutory Construction	p. 75
Legislative Intent	p. 78
Other Words in the Statute	p. 79
The Expressed Intent of Individual Legislators and Committee Reports	p. 80
Other Actions, Events, and Decisions in the Legislature	p. 80
The Perils of Legislative Intent	p. 81
Purpose: The Key to Wise Statutory Interpretation	p. 83
The Centrality of Statutory Purpose	p. 84
Determining Purpose: Words Can Help	p. 85
Determining Purpose: The Audience	p. 86
Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History	p. 86
Illustrations of Statutory Purpose	p. 87
Two Easy Cases	p. 87
The Case of the Lady Jurors, or Why Legislative Intent Does Not Determine Statutory Purpose	p. 88
Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers	p. 88
A Final Complication	p. 90
Stare Decisis in Statutory Interpretation	p. 91
Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business	p. 92
The Case against Increased Adherence to Precedent in Statutory Interpretation	p. 97
A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation	p. 100
Illustrative Case	p. 101
Questions about the Case	p. 103
Interpreting the United States Constitution	p. 104
"The Supreme Law of the Land"	p. 105
Conventional Legal Reasoning in Constitutional Interpretation	p. 108
Words as Channels of Meaning	p. 108
Original Intent and Purpose	p. 110
Stare (In) Decisis	p. 112
Judicial Review and Democratic Theory	p. 112
Theories of Judicial Self-Restraint	p. 114
Political Constraints on the Court	p. 117
The Turn to Individual Dignity	p. 120
Illustrative Case	p. 121
Questions about the Case	p. 126
Law and Politics	p. 127
Legal Reasoning as Liberal Justification	p. 127
A Recap	p. 127
Impartiality and Trust	p. 129
Impartial Judgment	p. 130
The Value of Impartiality	p. 134
Applying the Theory	p. 136
Legal Reasoning as a Public Language	p. 137
Law and Moralistic Communities: The Mann Act Revisited	p. 139
Law in Conditions of Diversity: Emerging Issues of Gay Rights	p. 143
Conclusion	p. 154
Illustrative Case	p. 155
Introduction to Legal Procedure and Terminology	p. 158
The Case	p. 158
Legal Terms	p. 159
Bush v. Gore	p. 163
Introduction	p. 163
The Protest Phase	p. 164
The Contest Phase	p. 168
Questions	p. 181
Conclusion: Why Legal Reasoning Matters	p. 183
Credits	p. 184
Index	p. 185
Index of Cases	p. 189
Table of Contents provided by Syndetics. All Rights Reserved.

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Reason in Law

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