Read more
The common law, which is made by courts, consists of rules that govern relations between individuals, such as torts (the law of private wrongs) and contracts. Legal Reasoning explains and analyzes the modes of reasoning utilized by the courts in making and applying common law rules. These modes include reasoning from binding precedents (prior cases that are binding on the deciding court); reasoning from authoritative although not binding sources, such as leading treatises; reasoning from analogy; reasoning from propositions of morality, policy, and experience; making exceptions; drawing distinctions; and overruling. The book further examines and explains the roles of logic, deduction, and good judgment in legal reasoning. With accessible prose and full descriptions of illustrative cases, this book is a valuable resource for anyone who wishes to get a hands-on grasp of legal reasoning.
List of contents
Preface; 1. A brief introduction to the common law; 2. The rule-based model of legal reasoning; 3. Reasoning from precedent and the principle of stare decisis; 4. How it is determined what rule a precedent establishes; 5. Reasoning from authoritative although not legally binding legal rules; 6. The role of social morality, social policy, and empirical propositions in legal reasoning and the judicial adoption of new legal rules based on social propositions; 7. Legal rules, principles, and standards; 8. The malleability of legal rules; 9. Hiving off new legal rules, creating exceptions to established rules, and distinguishing; 10. Reasoning from analogy; 11. The roles of logic, deduction, and good judgement in legal reasoning; 12. Reasoning from hypotheticals; 13. Overruling.
About the author
Melvin Aron Eisenberg is Jesse H. Choper Professor of Law Emeritus, University of California, Berkeley Law School. He is the author of The Nature of the Common Law and Foundational Principles of Contract Law.
Summary
Legal Reasoning concerns the modes of reasoning utilized in the common law, which is made by courts and consists of the rules that govern the relations between individuals, such as contracts. The book is addressed to legal scholars, law students, pre-law students, and the general public.
Foreword
This book provides a thoroughgoing discussion of the modes of reasoning utilized in judge-made (or common) law.
