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Reason in Law

ISBN: 9780321011114 | 0321011112
Format: Paperback
Publisher: Addison-Wesley
Pub. Date: 11/1/1997

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SummaryTable of Contents
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.
Prefacexi(2)
About the Authorxiii
1 WHAT LEGAL REASONING IS, AND WHY IT MATTERS
1(20)
An Overview of Law and Politics
... MORE		1(2)
A Definition of Law
3(3)
A Definition of Legal Reasoning
6(5)
Three Ways to Classify Law
11(4)
Formal Categories of Official Legal Texts
11(1)
The Problems That Law Addresses
12(1)
The Choices That Legal Reasoning Creates
13(2)
Illustrative Case
15(4)
Questions About the Case
19(1)
For Further Thought
19(2)
2 CHANGE AND STABILITY IN LEGAL REASONING
21(16)
Unpredictability in Law
22(5)
Reasoning from Words
22(1)
Reasoning from Examples of Precedents
23(4)
Stage One: Reasoning by Example in General
24(1)
Stage Two: Examples in Law
24(1)
Stage Three: The Three-Step Process of Reasoning by Example
25(1)
Stage Four: How Reasoning by Example Perpetuates Unpredictability in Law
25(1)
Stage Five: An Illustration of Unpredictability in Law
26(1)
Stage Six: Reasoning by Example Facilitates Legal Change
27(1)
Is Unpredictability in Law Desirable?
27(1)
The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law
28(3)
Illustrative Cases
31(3)
Questions About the Cases
34(1)
For Further Thought
35(2)
3 STATUTORY INTERPRETATION
37(41)
What Are Statutes?
37(2)
Three Ways Judges Mistakenly Interpret Statutes
39(8)
First Mistake: Sticking to the Literal Meaning of Words
39(2)
Second Mistake: The Golden Rule
41(2)
Third Mistake: Legislative Intent and Legislative History Idle Armchair Speculation
43(4)
Other Words in the Statute
44(1)
The Expressed Intent of Individual Legislators and Committee Reports
45(1)
Other Actions, Events, and Decisions in the Legislature
45(2)
Words, Intent, and History Do Not Reach "Correct" Interpretations
47(8)
The Disorderly Conduct of Words
48(1)
The Booming Canons of Statutory Construction
49(3)
Judicial Naivete about the Legislative Process
52(3)
How Judges Should Interpret Statutes in the First Instance
55(8)
The Centrality of Statutory Purpose
56(1)
Determining Purpose: Words Can Help
57(1)
Determining Purpose: The Audience
58(1)
Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History
59(1)
Illustrations of Statutory Purpose
59(3)
Three Easy Cases
59(1)
The Case of the Lady Jurors, or Why Legislative Intent Does Not Necessarily Determine Statutory Purpose
60(1)
Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers
60(2)
A Final Complication
62(1)
Stare Decisis in Statutory Interpretation
63(10)
Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business
64(6)
The Case Against Increased Adherence to Precedent in Statutory Interpretation
70(3)
A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation
73(1)
Illustrative Case
74(1)
Questions About the Case
75(1)
For Further Thought
76(2)
4 COMMON LAW
78(41)
Origins of Common Law
78(4)
Reasoning By Example in Common Law
82(12)
The Cherry Tree
84(4)
The Pit
88(1)
The Diving Board
89(2)
Analyzing Cases
91(1)
Changing Judicial Styles
92(1)
Change in Law Itself
92(2)
Keeping the Common Law Tradition Alive
94(11)
Making Common Law Without Close Precedents
95(3)
Horizontal Stare Decisis in Common Law
98(7)
Rightly Adhering to Precedent Because the Need for Stability and Reliance Is Present
99(3)
Wrongly Adhering to Precedent When Stability Is Unnecessary
102(3)
The Common Law Tradition Today
105(8)
Illustrative Case
113(3)
Questions About the Case
116(1)
For Further Thought
116(3)
5 INTERPRETING THE UNITED STATES CONSTITUTION
119(27)
"The Supreme Law of the Land"
120(3)
Conventional Legal Reasoning in Constitutional Interpretation
123(4)
Words as Channels of Meaning
123(2)
The Intent of the Framers and the Purpose of Constitutional Provisions
125(2)
Stare Decisis
127(1)
Two Alternative Approaches to Constitutional Reasoning
127(8)
Theories About Constitutional Justification
128(3)
Political Constraints on the Court
131(4)
Illustrative Case
135(5)
Questions About the Case
140(1)
For Further Thought
141(5)
6 LAW AND POLITICS
146(35)
Legal Reasoning as Liberal Justification
147(9)
A Recap
147(1)
Impartiality and Trust
147(1)
Impartial Judgment
148(4)
What Evidence Supports This Theory of Impartiality
152(2)
Applying the Theory
154(2)
Legal Reasoning as a Public Language
156(18)
Law and Moralistic Communities: The Mann Act Revisited
158(3)
Law in Conditions of Diversity: Emerging Issues of Gay Rights
161(13)
Conclusion
174(1)
Illustrative Case
175(3)
For Further Thought
178(3)
APPENDIX: INTRODUCTION TO LEGAL PROCEDURE AND TERMINOLOGY181(6)
The Case181(1)
Legal Terms182(5)
Credits187(2)
Index189(4)
Index of Cases193

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