Legal Reasoning

Legal Reasoning
Professor Mark J. Richards
Constitutional Law II

I. Four elements of legal reasoning

A. Facts

B. Law

C. Policy implications

D. Normative and political implications

II. Why do legal actors engage in legal reasoning?

Lawyers

Juries

Judges

III. Legal positivism vs. legal realism

A. Legal positivism – argued that judges need only discover the law and apply it to the facts of the case.

B. Legal realism

1. Recognizes that judges make the law through the common law process

2. Judges are human and take a variety of factors into account, including normative and policy implications.

3. Interpretation. Indeterminacy of law.

4. Realism opened up the policy dimension of legal reasoning.  Louis Brandeis’ brief from Muller v. Oregon (1908) was comprised mainly of statistics and data supporting the law limiting working hours for women.

5. Realists on the Supreme Court included Oliver Wendell Holmes and Louis Brandeis

C. Legacies include pragmatism, the attitudinal model and political jurisprudence.

IV. Stare decisis

A. Definition: We let the prior decision stand. The principle is to follow precedent.

B. Vertical. No lower court should ignore a decision of a higher court which controls it. In the federal system, the U.S. Supreme Court controls all of the Courts of Appeals and District Courts. Each Court of Appeals controls all of the District Courts in its circuit.

C. Horizontal. Courts at the same level. Should the Supreme Court apply its own precedents?

D. Justification of Stare Decisis. Why is it important?


E. Legal change
How and why does the law change?


What are the advantages of flexibility in the law?

Disadvantages?