REASON IN LAW FOURTH EDITIONPDF电子书下载

Ⅰ WHAT LEGAL REASONING IS, AND WHY IT MATTERS 1

An Overview of Law and Politics 1

A Definition of Law 3

A Definition of Legal Reasoning 8

Three Ways to Classify Law 13

Where Legal Rules Are Made 13

The Problems That Laws Address 16

Dynamics of Law: The Choices That Laws Create 17

ILLUSTRATIVE CASE 21

QUESTIONS 27

Ⅱ CHANGE AND STABILITY IN LEGAL REASONING 29

Unpredictability in Law 30

Reasoning from Words 30

Reasoning from Examples of Precedents 32

Stage One: Reasoning by Example in General 33

Stage Two: Examples in Law 33

Stage Three: The Three-Step Process of Reasoning by Example 35

Stage Four: How Reasoning by Example Perpetuates Unpredictability in Law 35

Stage Five: An Illustration of Unpredictability in Law 36

Stage Six: Reasoning by Example Facilitates Legal Change 38

Is Unpredictability in Law Desirable? 39

The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law 40

ILLUSTRATIVE CASES 45

QUESTIONS 50

Ⅲ STATUTORY INTERPRETATION 55

What Are Statutes? 55

Three Ways Judges Mistakenly Interpret Statutes 59

First Mistake: Sticking to the Literal Meaning of Words 59

Second Mistake: The Golden Rule 62

Third Mistake: Legislative Intent and Legislative History 64

Idle Armchair Speculation 64

Other Words in the Statute 66

The Expressed Intent of Individual Legislators and Committee Reports 67

Other Actions, Events, and Decisions in the Legislature 68

Words, Intent, and History Do Not Reach "Correct" Interpretations 71

The Disorderly Conduct of Words 72

The Booming Canons of Statutory Construction 74

Judicial Naivete about the Legislative Process 78

How Judges Should Interpret Statutes in the First Instance 84

The Centrality of Statutory Purpose 85

Determining Purpose: Words Can Help 86

Determining Purpose: The Audience 87

Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History 87

Illustrations of Statutory Purpose 89

Three Easy Cases 89

The Case of the Lady Jurors, or Why Legislative Intent Does not Necessarily Determine Statutory Purpose 90

Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers 91

A Final Complication 95

Stare Decisis in Statutory Interpretation 96

Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business 98

The Case Against Increased Adherence to Precedent in Statutory Interpretation 107

A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation 112

ILLUSTRATIVE CASE 113

QUESTIONS 115

Ⅳ COMMON LAW 118

Origins of Common Law 119

Reasoning by Example in Common Law 124

The Cherry Tree 127

The Pit 134

The Diving Board 136

Analyzing Cases 139

Changing Judicial Styles 141

Change in Law Itself 141

Keeping the Common Law Tradition Alive 143

Making Common Law Without Close Precedents 145

Horizontal Stare Decisis in Common Law 150

Rightly Adhering to Precedent Because the Need for Stability and Reliance Is Present 151

Wrongly Adhering to Precedent When Stability Is Unnecessary 156

The Common Law Tradition Today 162

ILLUSTRATIVE CASE 173

QUESTIONS 178

Ⅴ INTERPRETING THE UNITED STATES CONSTITUTION 182

"The Supreme Law of the Land" 184

Conventional Legal Reasoning in Constitutional Interpretation 188

Words as Channels of Meaning 189

The Intent of the Framers and the Purpose of Constitutional Provisions 192

Stare Decisis 194

Two Alternatives for Constitutional Reasoning 196

Theories About Constitutional Justification 196

Political Constraints on the Court 202

ILLUSTRATIVE CASE 208

QUESTIONS 216

Ⅵ LAW AND POLITICS 222

Law and Politics I: Impartiality and Trust 224

Impartial Judgment 227

Law and Politics II: Law as a Public Language 236

Law and Moralistic Communities: The Mann Act Revisited 239

Law and Bureaucratic Communities: The Case of the Good Samaritan Revisited 245

Conclusion 258

ILLUSTRATIVE CASE 261

QUESTIONS 266

APPENDIX: INTRODUCTION TO LEGAL PROCEDURE AND TERMINOLOGY 270

INDEX 281

INDEX OF CASES 285