Reason in Law / Edition 4

Reason in Law / Edition 4

by Lief H. Carter
     
 

ISBN-10: 0673522695

ISBN-13: 9780673522696

Pub. Date: 09/28/1993

Publisher: Addison-Wesley Educational Publishers, Inc.

Carter, Lief H. and Burke, Thomas F., Reason in Law, 6th Edition*\ This accessible and lively book examines the relationship between law and politics and emphasizes the political importance of sound legal reasoning. It teaches readers how to examine judicial decisions-how to become "thoughtful judges of judging." Using cases ripped from the headlines-such as Gore

Overview

Carter, Lief H. and Burke, Thomas F., Reason in Law, 6th Edition*\ This accessible and lively book examines the relationship between law and politics and emphasizes the political importance of sound legal reasoning. It teaches readers how to examine judicial decisions-how to become "thoughtful judges of judging." Using cases ripped from the headlines-such as Gore v. Bush, the Elian Gonzalez saga, and the ongoing Napster litigation-authors Carter and Burke teach through illustrative examples and have assembled a gallery of fascinating cases to engage the readers interest. For those interested in the American court system.

Product Details

ISBN-13:
9780673522696
Publisher:
Addison-Wesley Educational Publishers, Inc.
Publication date:
09/28/1993
Edition description:
Older Edition
Pages:
278

Table of Contents

Prefaceix
About the Authorsxiii
Reason in Lawxv
1What Legal Reasoning Is, and Why It Matters1
An Overview of Law and Politics1
A Definition of Law4
A Definition of Legal Reasoning7
Sources of Official Legal Texts12
The Choices That Legal Reasoning Confronts14
Illustrative Case16
Questions about the Case19
2Change and Stability in Legal Reasoning21
Sources of Unpredictibility in Law23
The Disorderly Conduct of Words23
The Unpredictability of Precedents24
Stage 1Reasoning by Example in General24
Stage 2Examples in Law24
Stage 3The Three-Step Process of Reasoning by Example25
Stage 4How Reasoning by Example Perpetuates Unpredictability in Law25
Stage 5An Illustration of Unpredictability in Law26
Stage 6Reasoning by Example Facilitates Legal Change27
Is Unpredictability in Law Desirable?28
The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law28
Illustrative Cases31
Questions about the Cases34
3Common Law35
Origins of Common Law35
Reasoning by Example in Common Law39
The Cherry Tree40
The Pit44
The Diving Board45
Keeping the Common-Law Tradition Alive48
Making Common Law without Close Precedents49
Horizontal Stare Decisis in Common Law52
Rightly Adhering to Precedent Because the Need for Stability and Reliance is Present52
Wrongly Adhering to Precedent When Stability Is Unnecessary55
The Common-Law Tradition Today58
Illustrative Case65
Questions about the Case67
4Statutory Interpretation68
What are Statutes?68
Four Misguided Approaches to Statutory Interpretation71
Literalism: Sticking to the Words72
The Golden Rule73
Canons of Statutory Construction75
Legislative Intent78
Other Words in the Statute79
The Expressed Intent of Individual Legislators and Committee Reports80
Other Actions, Events, and Decisions in the Legislature80
The Perils of Legislative Intent81
Purpose: The Key to Wise Statutory Interpretation83
The Centrality of Statutory Purpose84
Determining Purpose: Words Can Help85
Determining Purpose: The Audience86
Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History86
Illustrations of Statutory Purpose87
Two Easy Cases87
The Case of the Lady Jurors, or Why Legislative Intent Does Not Determine Statutory Purpose88
Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers88
A Final Complication90
Stare Decisis in Statutory Interpretation91
Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business92
The Case against Increased Adherence to Precedent in Statutory Interpretation97
A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation100
Illustrative Case101
Questions about the Case103
5Interpreting the United States Constitution104
"The Supreme Law of the Land"105
Conventional Legal Reasoning in Constitutional Interpretation108
Words as Channels of Meaning108
Original Intent and Purpose110
Stare (In) Decisis112
Judicial Review and Democratic Theory112
Theories of Judicial Self-Restraint114
Political Constraints on the Court117
The Turn to Individual Dignity120
Illustrative Case121
Questions about the Case126
6Law and Politics127
Legal Reasoning as Liberal Justification127
A Recap127
Impartiality and Trust129
Impartial Judgment130
The Value of Impartiality134
Applying the Theory136
Legal Reasoning as a Public Language137
Law and Moralistic Communities: The Mann Act Revisited139
Law in Conditions of Diversity: Emerging Issues of Gay Rights143
Conclusion154
Illustrative Case155
Appendix AIntroduction to Legal Procedure and Terminology158
The Case158
Legal Terms159
Appendix BBush v. Gore163
Introduction163
The Protest Phase164
The Contest Phase168
Questions181
Conclusion: Why Legal Reasoning Matters183
Credits184
Index185
Index of Cases189

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