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Reason in Law Update / Edition 7
     

Reason in Law Update / Edition 7

by Lief Carter, Tom Burke, Thomas F. Burke
 

ISBN-10: 0321439422

ISBN-13: 9780321439420

Pub. Date: 07/26/2006

Publisher: Longman

Reason in Law examines the intersection of law and politics: legal reasoning. It teaches students how to examine judicial decisions, encouraging them to become “thoughtful judges of judging.” Using cases ripped from the headlines—such as the Alabama federal courthouse “Ten Commandments” case, Ashcroft v. Oregon, and Lawrence v.

Overview

Reason in Law examines the intersection of law and politics: legal reasoning. It teaches students how to examine judicial decisions, encouraging them to become “thoughtful judges of judging.” Using cases ripped from the headlines—such as the Alabama federal courthouse “Ten Commandments” case, Ashcroft v. Oregon, and Lawrence v. Texas—authors Carter and Burke teach through illustrative examples and have assembled a gallery of fascinating cases to engage student interest.

Ultimately, the text attempts to answer the question: “How can a pluralistic society be ruled legitimately?” If people of differing political allegiances can interpret the same legal text quite differently, how can the rule of law be properly applied?

Product Details

ISBN-13:
9780321439420
Publisher:
Longman
Publication date:
07/26/2006
Series:
Longman Classics (Pearson) Ser.
Edition description:
Longman Classics Edition
Pages:
208
Product dimensions:
6.44(w) x 9.11(h) x 0.40(d)

Table of Contents

Preface

About the Authors

Reason in Law

1 What Legal Reasoning Is, and Why It Matters

An Overview of Law and Politics

A Definition of Law

A Definition of Legal Reasoning

Legal Reasoning Does Not Discover the “One Right Answer.”

The Structure of Legal Reasoning.

Sources of Official Legal Texts

The Choices That Legal Reasoning Confronts

Illustrative Case

Questions about the Case

2 Change and Stability in Legal Reasoning

Sources of Unpredictibility in Law

The Disorderly Conduct of Words

The Unpredictability of Precedents

Stage One: Reasoning by Example in General

Stage Two: Examples in Law

Stage Three: The Three-Step Process of Reasoning by Example

Stage Four: How Reasoning by Example Perpetuates Unpredictability in Law

Stage Five: An Illustration of Unpredictability in Law

Stage Six: Reasoning by Example Facilitates Legal Change

Is Unpredictability in Law Desirable?

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

Questions about the Cases

3 Common Law

Origins of Common Law

Reasoning by Example in Common Law

The Cherry Tree

The Pit

The Diving Board

Keeping the Common-Law Tradition Alive

Making Common Law without Close Precedents

Horizontal Stare Decisis in Common Law

Rightly Adhering to Precedent Because the Need for Stability and Reliance is Present

Wrongly Adhering to Precedent When Stability Is Unnecessary

The Common-Law Tradition Today

Illustrative Case

Questions about the Case

4 Statutory Interpretation

What are Statutes?

Four Misguided Approaches to “First Instance” Statutory Interpretation

Literalism: Sticking to the Words

The Golden Rule

Canons of Statutory Construction

Legislative Intent

Other Words in the Statute

The Expressed Intent of Individual Legislators and Committee Reports

Other Actions, Events, and Decisions in the Legislature

The Perils of Legislative Intent

Purpose: The Key to Wise Statutory Interpretation

The Centrality of Statutory Purpose

Determining Purpose: Words Can Help

Determining Purpose: The Audience

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

Illustrations of Statutory Purpose

Two Easy Cases

The Case of the Lady Jurors, or Why Legislative Intent Does Not Determine Statutory Purpose

Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers

A Final Complication

Stare Decisis in Statutory Interpretation

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

The Case against Increased Adherence to Precedent in Statutory Interpretation

A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation

Illustrative Case

Questions about the Case

5 Interpreting the United States Constitution

“The Supreme Law of the Land”

Conventional Legal Reasoning in Constitutional Interpretation

Words as Channels of Meaning

Original Intent and Purpose

Stare (In)Decisis

Judicial Review and Democratic Theory

Theories of Judicial Self-Restraint

Political Constraints on the Court

The Turn to Individual Dignity

Illustrative Case

Questions about the Case

6 Law and Politics

Three Threats to the Rule of Law

Democracy

Attacks on Judicial Legitimacy

National Crises

The Rule of Law as Liberal Justification

A Recap

Impartiality and Trust

Impartial Judgement

The Value of Impartiality

Applying the Theory

Illustrative Case

Appendix “How Law Differs from Politics: The Case of Terry Schindler Shiavo”

Credits Index Index of Cases

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