Dimensions of legal reasoning : developing analytical acuity from law school to law practice / Timothy P. Terrell, Professor of Law, Emory University School of Law.
2016
K212 .T43 2016 (Map It)
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Details
Title
Dimensions of legal reasoning : developing analytical acuity from law school to law practice / Timothy P. Terrell, Professor of Law, Emory University School of Law.
Published
Durham, North Carolina : Carolina Academic Press, [2016]
Call Number
K212 .T43 2016
ISBN
9781632820945 (pbk.)
1632820943 (pbk.)
9781632820952 (ebook)
1632820951
9781632820952
1632820943 (pbk.)
9781632820952 (ebook)
1632820951
9781632820952
Description
xvii, 276 pages : illustrations ; 23 cm
System Control No.
(OCoLC)957077790
Summary
"Although [this book] begins with attention to some of the basics of legal thinking, it progresses quickly to fundamental issues of legal theory and current legal conflict. The book’s goal is to delve deep into the thought process of lawyers and judges confronted with difficult controversies requiring sophisticated analysis. The book creates an ambitious four-part model of the most critical elements within legal reasoning — nuances of language, varying circumstances, disputed values, and the roles of political institutions — to demonstrate the inevitability, but structured predictability, of legal disagreement." -- Publisher's website.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Preface
xiii
Acknowledgement
xvii
pt. I
Initial Analytic Steps
Introduction: Art and Angst Amid Ambiguity: Appreciating Disagreement
5
Legal Reasoning as Unique
5
Beyond Text and Context
6
Legal Reasoning as Art
7
Legal Reasoning as Angst
8
Developing and Applying a Model
9
Notes
10
ch. One
Challenge of Calling "Balls and Strikes": The Curious Case of Gould v. Roberts
13
Gould's Essay
15
Classroom Illustration of the Analytic Challenge
17
Notes
22
ch. Two
To Flatlaw and Beyond: Appreciating Multiple Analytic Dimensions
27
A.
Abbott's Flatland
28
B.
Reasoning From Dotlaw to Linelaw
30
C.
Reasoning Toward Flatlaw: From Lines to Shapes
34
D.
Need for a Next Step
37
E.
Transcending Flatlaw: From Shapes to Objects
38
F.
Nature and Content of the Next Step
44
G.
Difficulties with the Third Dimension
45
H.
Going Further: Rethinking the Dots, Lines, Shapes, and Objects Themselves
48
Notes
49
pt. II
Adding Wider Perspectives
ch. Three
Traditions of Legal Reasoning: Developing Analytical Legitimacy Despite Substantive Disagreement
55
A.
Legal Theory's Common Traditions
56
1.
Three Questions and Four Shared Themes
56
2.
Developing Strategic Argumentation
59
a.
Prof. Schauer's Version of Process Faith
60
b.
Prof. Fuller's Descriptive Challenge
63
B.
Appreciating the Hart-Dworkin Debate: Of Rules, Principles, and Policies
63
1.
Hart and the "Central Case" of Law
64
a.
Law as Derived From Psychological Fact
65
b.
Justice as a Fact Rather than a Value
68
c.
Law, Justice, and Iniquity
69
d.
Law as Archaeology
71
2.
Dworkin's Revised Psychology from Normativity
72
a.
Rules and Judicial Discretion
72
b.
Principles within Legal Reasoning
74
c.
Principles as Separate From Rules
76
d.
Functions of Principles within the Legal System
77
e.
Principles as the Normative Conscience of the Law
80
3.
Final Lessons: Denying Dworkin's "Right Answer" Thesis
82
Notes
84
ch. Four
Rethinking the Analytic Tradition: Text, Context, Hypertext, and Subtext
93
A.
Legal Reasoning as Rhetorical Prediction
93
B.
On Thoroughness and Concepts
94
C.
"Text" Gives Way to Context, Hypertext, and Subtext
97
D.
Predicting Disagreements: Rhetoric and Legal Reasoning
102
1.
Practical Rhetoric: Toulmin Logic
103
2.
Example: The Right of Publicity
105
Notes
109
pt. III
Adding Depth to Each Dimension
ch. Five
Challenge of Text: The Relationship of "Is," "Ought" and Focal Meaning
115
A.
Language and Set Theory
116
B.
On Definitional Technique: Meaning as Structured Ambiguity
119
1.
Focal Meaning
119
2.
Definition and Early Legal Education
121
3.
Inadequacies of Definitions for Legal Theory
123
a.
Concepts as Cheese: Of Cheddar and Swiss
125
b.
Set's "Layers"
127
c.
Of Wavy Perimeters
127
C.
On Theory: Justifying Meaning
128
D.
Illustrations From Our Ultimate Text: Of the Constitution's "Majestic Generalities"
131
1.
Speech
131
2.
Religion
133
3.
Property
138
4.
Due Process
141
Notes
142
ch. Six
Challenge of Context: What "Is" Means in Both Facts and Law
147
A.
Context and Facts: Horizontal and Vertical Categories
148
B.
Context as Legal Categories: Horizontal and Vertical Again
154
C.
Creating Legal Breadth: Javins v. First National Realty and a Theory of Judicial "Integrity"
155
1.
Judge Wright's Legal Creativity
155
2.
Prof. Dworkin's Legal "Integrity"
157
3.
Manipulating Context, but with Integrity Rather than "Right Answers"
159
Notes
164
ch. Seven
Challenge of Hypertext: The Struggle within "Ought" of Multiple Perspectives on Fundamental Values
169
A.
Range of Legal Theories Within Hypertext
170
B.
Justifying Legal Material
173
1.
Return to Fairness and Justice: The Moral and the Political
173
2.
Some Philosophical Background
174
3.
Distinguishing Categorical from Consequential
179
C.
Return to Judge Wright and Umpire Pinelli
181
1.
Contrasting the Reasonable with the Legitimate
181
2.
Combining Context and Hypertext
183
3.
Final Step: Dimensions as Variables
186
Notes
188
ch. Eight
Challenge of Subtext: Considering the Judiciary's Role in the "Game" of Legal Life
191
A.
From Law to the Rule of Law
192
B.
Why Did Pinelli Cry? Psychological vs. Institutional Explanations
193
C.
"Scorer's Discretion" and a Positivist Approach to Judging
195
D.
Perspectives on the Subtext of Political Institutions
197
1.
Pinelli and the Supposed Primacy of Baseball's "Text"
197
2.
Context: Pinelli and the Ambiguity of Baseball's "Customary Law"
200
3.
Hypertext: Vindicating Pinelli Through Baseball's "Values"
202
E.
From Umpires to Judges: A Renewed Appreciation for Judicial Independence
204
F.
Jury as an Additional Issue in Subtext
207
Notes
208
pt. IV
Bringing it All Together
ch. Nine
Right (or Rights?) to Privacy (or Privacies?)
215
A.
U.S. Cases: Cell Phones and Heat Detection
216
1.
Bartnicki: Does Speech Define Privacy or Privacy Define Speech?
217
2.
Kyllo: Does Privacy Define Searching or Searching Define Privacy?
221
B.
Canadian Case: Heat Detection, Again, but Methodical Reasoning
225
C.
Using Legal Reasoning to Provide Additional Analytic Perspective
228
1.
Context of Analytic Scale: Justice and Fairness
229
2.
Values of Hypertext and Subtext: Categorical and Consequential
230
D.
Resulting Analytic Model
231
1.
Four Predictable Analytic Perspectives
231
2.
Substance of the Four Perspectives
232
E.
From Boxes to Variables
234
F.
Confirming the Analytic Model: Back to the Privacy Cases
236
G.
Legal Reasoning and Good Lawyering
240
Notes
242
ch. Ten
Never-Ending Disagreements over Statutory Interpretation: The Primacy of Subtext
245
A.
Textual Ambiguity and Legal Reasoning
245
B.
Open Texture and the Traditional Responses
249
C.
Examples of Scholarly Efforts to Organize the Interpretation Debate
250
D.
Explaining, and then Structuring, Continuous Disagreement
255
1.
Explaining
255
2.
Structuring
258
a.
Factors Create Categories
258
b.
Further Implications: Structure Based on Variables
261
E.
Rethinking Holy Trinity Church
263
Notes
266
Conclusion Babe Pinelli's Moment of Truth: Suspending Cynicism
269
Index
271