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Thinking Like a Lawyer A New Introduction to Legal Reasoning

ISBN-10: 0674032705

ISBN-13: 9780674032705

Edition: 2009

Authors: Frederick F. Schauer, Frederick Schauer

List price: $44.00
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Book details

List price: $44.00
Copyright year: 2009
Publisher: Harvard University Press
Publication date: 4/27/2009
Binding: Hardcover
Pages: 238
Size: 6.25" wide x 9.50" long x 0.75" tall
Weight: 1.188
Language: English

Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia.

Preface
Introduction: Is There Legal Reasoning?
Rules-in Laws and Elsewhere
Of Rules in General
The Core and the Fringe
The Generality of Rules
The Formality of Law
The Practice and Problems of Precedent
Precedent in Two Directions
Precedent-The Basic Concept
A Strange Idea
On Identifying a Precedent
Of Holdings and Dicta
On the Force of Precedent-Overruling, Distinguishing, and Other Types of Avoidance
Authority and Authorities
The Idea of Authority
On Binding and So-Called Persuasive Authority
Why Real Authority Need Not Be "Binding"
Can There Be Prohibited Authorities?
How Do Authorities Become Authoritative?
The Use and Abuse of Analogies
On Distinguishing Precedent from Analogy
On the Determination of Similarity
The Skeptical Challenge
Analogy and the Speed of Legal Change
The Idea of the Common Law
Some History and a Comparison
On the Nature of the Common Law
How Does the Common Law Change?
Is the Common Law Law?
A Short Tour of the Realm of Equity
The Challenge of Legal Realism
Do Rules and Precedents Decide Cases?
Does Doctrine Constrain Even If It Does Not Direct?
An Empirical Claims
Realism and the Role of the Lawyer
Critical Legal Studies and Realism in Modern Dress
The Interpretation of Statutes
Statutory Interpretation in the Regulatory State
The Role of the Text
When the Text Provides No Answer
When the Text Provides a Bad Answer
The Canons of Statutory Construction
The Judicial Opinion
The Causes and Consequences of Judicial Opinions
Giving Reasons
Holding and Dicta Revisited
The Declining Frequency of Opinions
Making Law with Rules and Standards
The Basic Distriction
Rules, Standards, and the Question of Discretion
Stability and Flexibility
Rules and Standards in Judicial Opinions
On the Relation between Breadth and Vagueness
Law and Fact
On the Idea of a Fact
Determining Facts at Trial-The Law of Evidence and Its Critics
Facts and the Appellate Process
The Burden of Proof and Its Cousins
The Burden of Proof
Presumptions
Deference and the Allocation of Decision-Making Responsibility
Index