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Ⅰ WHAT LEGAL REASONING IS, AND WHY IT MATTERS1

An Overview of Law and Politics1

A Definition of Law3

A Definition of Legal Reasoning8

Three Ways to Classify Law13

Where Legal Rules Are Made13

The Problems That Laws Address16

Dynamics of Law: The Choices That Laws Create17

ILLUSTRATIVE CASE21

QUESTIONS27

Ⅱ CHANGE AND STABILITY IN LEGAL REASONING29

Unpredictability in Law30

Reasoning from Words30

Reasoning from Examples of Precedents32

Stage One: Reasoning by Example in General33

Stage Two: Examples in Law33

Stage Three: The Three-Step Process of Reasoning by Example35

Stage Four: How Reasoning by Example Perpetuates Unpredictability in Law35

Stage Five: An Illustration of Unpredictability in Law36

Stage Six: Reasoning by Example Facilitates Legal Change38

Is Unpredictability in Law Desirable?39

The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law40

ILLUSTRATIVE CASES45

QUESTIONS50

Ⅲ STATUTORY INTERPRETATION55

What Are Statutes?55

Three Ways Judges Mistakenly Interpret Statutes59

First Mistake: Sticking to the Literal Meaning of Words59

Second Mistake: The Golden Rule62

Third Mistake: Legislative Intent and Legislative History64

Idle Armchair Speculation64

Other Words in the Statute66

The Expressed Intent of Individual Legislators and Committee Reports67

Other Actions, Events, and Decisions in the Legislature68

Words, Intent, and History Do Not Reach "Correct" Interpretations71

The Disorderly Conduct of Words72

The Booming Canons of Statutory Construction74

Judicial Naivete about the Legislative Process78

How Judges Should Interpret Statutes in the First Instance84

The Centrality of Statutory Purpose85

Determining Purpose: Words Can Help86

Determining Purpose: The Audience87

Determining Purpose: The Assumption of Legislative Rationality and the Uses of Legislative History87

Illustrations of Statutory Purpose89

Three Easy Cases89

The Case of the Lady Jurors, or Why Legislative Intent Does not Necessarily Determine Statutory Purpose90

Statutory Purpose in the Cases of Criminal Commerce: Caminetti, McBoyle, and Alpers91

A Final Complication95

Stare Decisis in Statutory Interpretation96

Major League Baseball, Haviland's Dog and Pony Show, and Government Regulation of Business98

The Case Against Increased Adherence to Precedent in Statutory Interpretation107

A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation112

ILLUSTRATIVE CASE113

QUESTIONS115

Ⅳ COMMON LAW118

Origins of Common Law119

Reasoning by Example in Common Law124

The Cherry Tree127

The Pit134

The Diving Board136

Analyzing Cases139

Changing Judicial Styles141

Change in Law Itself141

Keeping the Common Law Tradition Alive143

Making Common Law Without Close Precedents145

Horizontal Stare Decisis in Common Law150

Rightly Adhering to Precedent Because the Need for Stability and Reliance Is Present151

Wrongly Adhering to Precedent When Stability Is Unnecessary156

The Common Law Tradition Today162

ILLUSTRATIVE CASE173

QUESTIONS178

Ⅴ INTERPRETING THE UNITED STATES CONSTITUTION182

"The Supreme Law of the Land"184

Conventional Legal Reasoning in Constitutional Interpretation188

Words as Channels of Meaning189

The Intent of the Framers and the Purpose of Constitutional Provisions192

Stare Decisis194

Two Alternatives for Constitutional Reasoning196

Theories About Constitutional Justification196

Political Constraints on the Court202

ILLUSTRATIVE CASE208

QUESTIONS216

Ⅵ LAW AND POLITICS222

Law and Politics I: Impartiality and Trust224

Impartial Judgment227

Law and Politics II: Law as a Public Language236

Law and Moralistic Communities: The Mann Act Revisited239

Law and Bureaucratic Communities: The Case of the Good Samaritan Revisited245

Conclusion258

ILLUSTRATIVE CASE261

QUESTIONS266

APPENDIX: INTRODUCTION TO LEGAL PROCEDURE AND TERMINOLOGY270

INDEX281

INDEX OF CASES285