Contents
Acknowledgments vii
Introduction to legal reasoning 1
PART I THE FUNCTION OF LAW
1 Settling moral controversy 5
1.1 Settlement 5
1.2 The dilemma of rules 9
1.3 The possibility of determinate rules 11
1.4 The nature of law 16
PART II REASONING FROM CANONICAL LEGAL TEXTS
2 Interpreting posited rules 20
2.1 The lawmaker's intended meaning as the goal of legal
interpretation 21
2.2 What is the state of mind that constitutes the
lawmaker's intended meaning? 28
2.3 Some challenges to the determinacy of intended
meanings 30
2.4 Conclusion 44
3 Infelicities of, and norms constraining, intended meaning 46
3.1 Absurd, unjust, and pointless intended meanings 46
3.2 Opaque intended meanings 48
3.3 Conflicting multiple intended meanings 49
3.4 Norms constraining intended meanings as antidotes to
the foregoing infelicities 52
4 Non-intentionalist interpretation 65
4.1 Textualism 65
4.2 Dynamic interpretation of canonical legal rules 81
4.3 Original public meaning 83
PART III COMMON LAW REASONING
5 Natural reasoning and deduction from rules 87
5.1 Natural reasoning in the common law 88
5.2 Reasoning under rules 93
5.3 Natural reasoning and deductive reasoning compared 94
5.4 Some puzzles about the rule model 101
6 The mystification of common law reasoning 111
6.1 Analogical reasoning case to case 112
6.2 Reasoning from legal principles 130
7 Judicial practice 146
7.1 Why judges are imperfect rule-makers 149
7.2 Some indirect correctives to the problems of judicial
rule-making 156
7.3 Further thoughts on the rationality and sustainability
of common law practice 162
8 All or nothing 166
Bibliography 169
Index 178
Acknowledgments
L. A.
wishes to thank (now ex-) Dean Stephen Ferruolo, for supporting financially his work on this book, and Lois Zvolensky, for typing much of the manuscript.E. S. wishes to thank Johannes Maronga and Emily Southwick for excellent research assistance and Lyndsey Clark for invaluable help with the manuscript.
L. A. dedicates this book to Elaine Alexander, the best legal reasoner he knows.
E. S. dedicates this book to Kevin Clermont, the most precise legal reasoner she knows,
to Jian Clermont, the youngest legal reasoner she knows, to Adrienne Clermont, who was born a legal reasoner, and to Elaine Alexander, the best grammarian she knows.