Cover: Thinking Like a Lawyer: A New Introduction to Legal Reasoning, from Harvard University PressCover: Thinking Like a Lawyer in PAPERBACK

Thinking Like a Lawyer

A New Introduction to Legal Reasoning

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Product Details

PAPERBACK

$23.00 • £18.95 • €20.50

ISBN 9780674062481

Publication Date: 04/16/2012

Short

256 pages

6-1/8 x 9-1/4 inches

World

  • Preface
  • 1. Is There Legal Reasoning?
  • 2. 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
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. 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
  • 7. 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
  • 8. 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
  • 9. 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
  • 10. 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
  • 11. 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
  • 12. 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
  • Index

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