Synopses & Reviews
This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof. In addressing the question whether legal reasoning is distinctive, Frederick Schauer emphasizes the formality and rule-dependence of law. When taking the words of a statute seriously, when following a rule even when it does not produce the best result, when treating the fact of a past decision as a reason for making the same decision again, or when relying on authoritative sources, the law embodies values other than simply that of making the best decision for the particular occasion or dispute. In thus pursuing goals of stability, predictability, and constraint on the idiosyncrasies of individual decision-makers, the law employs forms of reasoning that may not be unique to it but are far more dominant in legal decision-making than elsewhere. Schauer's analysis of what makes legal reasoning special will be a valuable guide for students while also presenting a challenge to a wide range of current academic theories.
Review
This book will belong on every law professor's and law student's bookshelf--and on many others' bookshelves as well. Lawrence A. Alexander, University of San Diego School of Law, author of < i=""> Is There a Right of Freedom of Expression? <>
Review
Schauer is a leading scholar of jurisprudence and legal process, and his new book is as comprehensive, thorough, and sophisticated an introduction to legal reasoning as it is a lucid one. All of the bases are covered, and law students, teachers, practicing lawyers, and judges alike will gain perspective and insight from seeing the entire range of legal reasoning techniques laid out before them. Richard A. Posner, Judge, U.S. Court of Appeals for the Seventh Circuit, author of < i=""> How Judges Think <>
Review
Thinking Like a Lawyer is by far the best available introduction to legal reasoning, of interest to law students and their teachers alike. It should be enlightening to the general reader as well, who will learn what, for better and perhaps for worse, distinguishes 'thinking like a lawyer' from other approaches to analyzing social problems. Sanford V. Levinson, University of Texas Law School, author of < i=""> Our Undemocratic Constitution: Where the Constitution Goes Wrong <>
Review
Thinking Like a Lawyer is well-designed to work for first-year law school classes. It covers the most important themes relating to law and legal reasoning, and manages to do so in ways that are accessible and thought-provoking. Brian H. Bix, University of Minnesota, author of < i=""> Jurisprudence: Theory and Context <>
Review
A welcome complement to [Edward] Levi's approach, as well as being easier for the legal novice to understand. Yet Schauer's book also offers the lawyer and scholar useful perspective on what he or she does. Brian Leiter
Review
Thinking Like a Lawyer is excellent reading material for anyone wishing a deeper and more nuanced--even a more magnanimous--understanding of the motivations behind law's often convoluted pronouncements. Times Literary Supplement
Review
“
An Introduction to Legal Reasoning was when published an important contribution to the distinctively American view of legal argument, legal reasoning, legal decision making, and legal thought. It remains so to this day, and by no means solely for historical reasons.”
Review
“Few volumes of such small bulk contain so much matter for thought.”
Review
“Edward H. Levi’s book promises a more real realism and augurs well for the science of law.”
Review
“A first rate contribution to jurisprudence.”
Review
"A splendid job, one which soreley needed doing."
Synopsis
This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. Schauer's analysis of what makes legal reasoning special will be a valuable guide for students while also presenting a challenge to a wide range of current academic theories.
Synopsis
Originally published in 1949,
An Introduction to Legal Reasoning is widely acknowledged as a classic text. As its opening sentence states, “This is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the Constitution.” In elegant and lucid prose, Edward H. Levi does just that in a concise manner, providing an intellectual foundation for generations of students as well as general readers.
For this edition, the book includes a substantial new foreword by leading contemporary legal scholar Frederick Schauer that helpfully places this foundational book into its historical and legal contexts, explaining its continuing value and relevance to understanding the role of analogical reasoning in the law. This volume will continue to be of great value to students of logic, ethics, and political philosophy, as well as to members of the legal profession and everyone concerned with problems of government and jurisprudence.
About the Author
Edward H. Levi (1911–2000) was attorney general of the United States from 1975 to 1977, president of the University of Chicago, and dean of the University of Chicago Law School. Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia.
Table of Contents
- Is There Legal Reasoning?
- Rules—in Law and Elsewhere
2.1 Of Rules in General
2.2 The Core and the Fringe
2.3 The Generality of Rules
2.4 The Formality of Law - The Practice and Problems of Precedent
3.1 Precedent in Two Directions
3.2 Precedent—The Basic Idea
3.3 A Strange Idea
3.4 On Identifying a Precedent
3.5 On the Force of Precedent—Overruling, Distinguishing, and Other Types of Avoidance - Authority and Authorities
4.1 The Idea of Authority
4.2 On Binding and So-Called Persuasive Authority
4.3 Why Real Authority Need Not be “Binding”
4.4 Can There Be Prohibited Authorities?
4.5 How Authorities Become Authoritative - The Use and Abuse of Analogies
5.1 On Distinguishing Precedent from Analogy
5.2 On the Determination of Similarity
5.3 The Skeptical Challenge
5.4 Analogy and the Speed of Legal Change - The Idea of the Common Law
6.1 Some History and a Comparison
6.2 On the Nature of the Common Law
6.3 How Does the Common Law Change?
6.4 Is the Common Law Law?
6.5 A Short Tour of the Realm of Equity - The Challenge of Legal Realism
7.1 Do Rules and Precedents Decide cases?
7.2 Does Doctrine Constrain Even if It Does Not Direct?
7.3 An Empirical Claim
7.4 Realism and the Role of the Lawyer
7.5 Critical Legal Studies and Realism in Modern Dress - The Interpretation of Statutes
8.1 Statutory Interpretation in the Regulatory State
8.2 The Role of the Text
8.3 When the Text Provides No Answer
8.4 When the Text Provides a Bad Answer
8.5 The Canons of Statutory Construction - The Judicial Opinion
9.1 The Causes and Consequences of Judicial Opinions
9.2 Giving Reasons
9.3 On Holding and Dicta
9.4 The Declining Frequency of Opinions - Making Law with Rules and Standards
10.1 The Basic Distinction
10.2 Rules, Standards, and the Question of Discretion
10.3 Stability and Flexibility
10.4 Rules and Standards in Judicial Opinions - Law and Fact
11.1 On the Idea of a Fact
11.2 Determining Facts at Trial—The Law of Evidence and Its Critics
11.3 Facts and the Appellate Process - The Burden of Proof and Its Cousins
12.1 The Burden of Proof
12.2 Presumptions
12.3 Deference and the Allocation of Decision-Making Responsibility