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Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
Jurisprudence and legal reasoning 2011
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Jurisprudence and legal reasoning 2011

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    • 1. Jurisprudence and Legal Reasoning (or, If You Give a Moose a Muffin…) Copyright Adam J. MacLeod 2010, 2011
    • 2. Formal Legal Reasoning The Issue
      • What is this dispute about?
      • What legal doctrine(s) do these facts implicate?
      • Are the law and the facts:
        • Certain or
        • Indeterminate?
    • 3. Formal Legal Reasoning The Syllogism
      • Major Premise: What rule governs the case?
      • Minor Premise: What are the relevant facts of the case?
      • What conclusion (holding) follows from the combination of premises?
    • 4. Formal Legal Reasoning: The Syllogism
      • Major Premise (a/k/a The Rule): Whoever shall willfully take the life of another shall be punished by death.
      • Minor Premise (a/k/a The Relevant Facts): Billy waited until Sam was hunched over his desk, then snuck up behind him and stabbed him in the back eight times, killing him.
      • Conclusion (a/k/a The Holding, Judgment, or Verdict): Billy is guilty of murder and shall be executed.
    • 5. Formal Legal Reasoning: Speluncean Explorers
      • Major Premise: What rule governs the case?
      • Minor Premise: What are the relevant facts of the case?
    • 6. Formal Legal Reasoning: Speluncean Explorers
      • Major Premise: Whoever shall willfully take the life of another shall be punished by death.
      • Minor Premise: Upon the method proposed by Whetmore, and agreed to by the rest, the explorers killed and ate Whetmore without his consent.
      • Conclusion: ?
    • 7. Formal Legal Reasoning: United States v. Peter Calaway
      • Major Premise: What rule?
      • Minor Premise: What relevant facts?
    • 8. Formal Legal Reasoning: United States v. Peter Calaway
      • Major Premise: Communications between a psychotherapist and his patient are not admissible in a criminal proceeding against the patient, unless… ?
      • Minor Premise: Calaway expressed his thoughts about shooting Judge Rivers during a therapy session with his psychiatrist, Dr. Vandall.
    • 9. Indeterminacy
      • Legal indeterminacy, either:
        • We don’t know what rule applies—uncertainty
        • We have a rule, but it is ambiguous—ambiguity
      • Factual indeterminacy, either:
        • We don’t know what happened—uncertainty
        • The facts admit of more than one rational inference—ambiguity
    • 10. Indeterminacy
      • Why is this a difficult case?
      • Uncertainty or ambiguity about the rule: Is there (or ought there be) an exception to the testimonial privilege in cases of serious threats of harm?
      • Uncertainty or ambiguity about the facts: ?
    • 11. Two Historical Responses to Indeterminacy Failure of Formalism Realism: The job of the lawyer is to predict what the judge will do. Positivism: The job of the lawyer is to discern the reason(s) for the rule within the legal system. OR
    • 12. The Logic of Legal Realism
      • If you give a moose a muffin, what will he do with it?
      • Either:
        • There is no way to know (in which case, prediction is impossible).
        • or
        • He’ll eat it, of course (in which case judgment is impossible).
    • 13. If You Give the Supreme Court a Testimonial Privilege Challenge…
      • What is the Supreme Court likely to do with the testimonial privilege?
      • This is the only question that the Realists would permit the Fourteenth Circuit Court of Appeals to ask.
    • 14. If You Give the Supreme Court a Testimonial Privilege Challenge…
      • What is the Supreme Court likely to do with the testimonial privilege?
      • This is the only question that the Realists would permit the Fourteenth Circuit Court of Appeals to ask.
      • Realism provides no standard on which to render judgment. There are no rules, only predictions.
    • 15. If You Give the Supreme Court a Testimonial Privilege Challenge…
      • What is the Supreme Court likely to do with the testimonial privilege?
      • This is the only question that the Realists would permit the Fourteenth Circuit Court of Appeals to ask.
      • Realism provides no standard on which to render judgment. There are no rules, only predictions.
      • Bottom line: whoever has the power (five justices of the Supreme Court, Whetmore’s companions) will prevail.
    • 16. Historical Responses to Indeterminacy Failure of Formalism Realism Positivism OR Legal Crit: The job of the lawyer is to challenge power.
    • 17. The Logic of Critical Legal Studies
      • Who is the most powerful actor here?
      • If Judge Rivers is the most powerful, the privilege should apply.
      • But on this logic, the privilege should always apply.
      • An actor who communicates a threat to his psychotherapist can never be prosecuted.
      • This is a dead end.
    • 18. The Logic of Critical Legal Studies
      • Who is the most powerful actor here?
      • If Agent Calaway is the most powerful, the privilege should not apply.
      • But on this logic, the privilege should never apply.
      • An actor who communicates with his therapist can never depend on secrecy.
      • This also is a dead end.
    • 19. Historical Responses to Indeterminacy Failure of Formalism Realism Positivism OR Critical Legal Studies
    • 20. The Logic of Positivism
      • What does the American legal tradition say about this problem?
      • What authorities support this rule?
      • Sources of authority:
        • Judicial decisions, administrative decisions, and other precedent
        • Historical development of the rule or doctrine
        • Legislative history
    • 21. The Logic of Positivism
      • Deduction from binding authority:
        • Has Congress elsewhere defined the scope of the privilege?
        • Has the U.S. Supreme Court defined the scope of the privilege?
        • If a superior authority has defined the term, plug that definition into the major premise in your formal syllogism.
    • 22. The Logic of Positivism
      • Induction from persuasive authority:
        • How have other federal circuit courts defined the scope of the privilege?
        • How have federal district courts and state courts defined the scope of the privilege?
        • Are there any common factors among those decisions that have found an exception to the privilege?
        • If so, can a general rule be induced from those factors?
    • 23. The Logic of Positivism
      • Inductive reasoning from persuasive authority:
        • In every other case in which courts have found an exception to the privilege, X has been true.
        • X is a sufficient condition not to apply the privilege.
    • 24. The Logic of Positivism
      • Other sources of reasons:
        • Common law rules from which a statutory rule was derived
        • Previous statutes, of which this statute is an amended version
        • Legislative history
        • Canons of statutory interpretation
        • Comparable statutes and statutes that use the same term
    • 25. The Logic of Positivism
      • What does the lawyer do when the authorities within the legal tradition are inconclusive?
      • See:
        • Ambiguity: What counts as an establishment of religion within the meaning of the First Amendment?
        • Legal discretion: What counts as a “reasonable” search and seizure under the Fourth Amendment?
        • Factual discretion: Did the speluncean explorers act willfully when they killed Whetmore in order to survive?
    • 26. Historical Responses to Indeterminacy Failure of Formalism Realism Positivism OR Critical Legal Studies Consequentialism Neutrality Liberalism Perfectionism
    • 27. The Logic of Consequentialism
      • What is the best aggregate result for maximizing _______ ?
      • This is policy (prudential) analysis
        • Best legal rules to maximize health insurance coverage
        • Best legal rules to improve educational achievement
        • Best legal rule to ensure impartiality of federal judges
    • 28. The Logic of Consequentialism
      • But policy-making is the job of legislatures. Separation of powers requires courts to defer to the policy judgments of legislatures. Otherwise, no democracy.
      • Also, consequentialism does not answer moral questions:
        • How many persons may you kill in order to make the greatest number of people happy?
        • What lies may you tell in order to maintain an appearance of impartiality?
        • How many speluncean explorers may the other explorers eat in order to save the lives of the non-eaten?
    • 29. The Logic of Neutrality Liberalism
      • Which rule will be strictly neutral as between competing conceptions of the good?
      • Works well for purely political questions:
        • Why is federalism a good idea?
        • What balance of power between branches of government will best secure freedom for citizens?
        • Why is the appearance of impartiality an important attribute for the federal judiciary?
        • Should judges remain impartial between litigants?
    • 30. The Logic of Neutrality Liberalism
      • Does not answer contested questions on which there is no neutral ground:
        • Should the state privilege conjugal marriage, polyandry, and/or same-sex intimacy?
        • Should women have the right to have abortions, or should the unborn have the right to live?
        • Should speluncean explorers have the right to kill and eat one another in order to survive?
      • It is the job of the lawmaker to choose among conceptions of the good: persons should not kill and eat other persons.
    • 31. Perfectionism: A Comprehensive Solution to Indeterminacy Failure of Formalism Realism Positivism OR Critical Legal Studies Consequentialism Neutrality Liberalism Perfectionism Natural Law, Perfectionist Liberalism
    • 32. Perfectionism: A Comprehensive Theory of Justice
      • What is the best rule, based upon the best reasons?
      • Natural law and positive law
        • Where positive law resolves the question from within the tradition, and is not unjust, it should control. Internal reasons are to be preferred over external reasons for the integrity of the legal system.
        • Where there is no positive law on the question, a new rule can be derived from more fundamental principles.
    • 33. Perfectionism: A Comprehensive Theory of Justice
      • What is the best rule, based upon the best reasons?
      • Moral questions and prudential questions
        • Moral rules are derived from fundamental principles, which are known to all and binding upon all.
        • Prudential rules are derived from specialized knowledge about the likely consequences of competing choices.
    • 34. Perfectionism: A Comprehensive Theory of Justice Rule Positive Law Prudential Questions: Consequential Reasons (Legislation & Policy) Political Questions: Structural Reasons (Constitutional Law) Legal Questions: Principled Reasons (Perfectionism)
    • 35. Perfectionism: A Comprehensive Theory of Justice
      • When formalism is sufficient, use it.
      • When formalism fails:
        • First, construct an argument from authorities within the legal system (positive law).
        • Second, demonstrate how those authorities support the rule of law (constitutional law).
        • Third, show how those authorities are derived from, and consistent with, more fundamental moral principles (natural law).
        • Fourth, explain why your proposed holding results in the least problematic consequences (policy).
    • 36. Realism’s Revenge
      • Judges disagree about the scope and persuasiveness of different jurisprudential systems.
        • 7 th Circuit Judge: “Sensible pragmatic judges” will consider “systemic, including institutional, consequences” in order to reach the best “policy judgments.”
        • 10 th Circuit Judge: It is not the job of the judge to “ decide cases based on his or her views of social policy .” Instead, the judge should “enforce the will or intent of the People, as expressed in the text of” the Peoples’ laws.
    • 37. Realism’s Revenge
      • Would you tailor your arguments differently in the 7 th Circuit than in the 10 th Circuit?
      • What would an effective appellate advocate do?
      • What would an ethical advocate do?

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