Law and Legal Reasoning Enforceable rules governing relationships
Law and Legal Reasoning Enforceable rules governing relationships among individuals and between individuals and their society n Judges use their personal worldview and legal philosophies to apply the law to specific disputes n
Law and Legal Reasoning n Natural law – inherent in human nature – universal law – natural rights – a higher source than the actual written laws – supreme over positive law
Law and Legal Reasoning n Legal Positivism – the written law is supreme n Legal Realism – socio-economic realities should temper a judge’s application of written law – specific circumstances considered – Llewellyn and the UCC
Law and Legal Reasoning n Judicial interpretation – judges make new law – significant leeway in interpreting the law – judge’s values, beliefs, experience all influence the application of the law to the facts so that 2 judges may decide the same issue differently
Law and Legal Reasoning n Common Law – Early English Courts » Curiae regis -uniform set of rules established rather than relying on local custom » courts of law awarded remedies of law- land, items of value, compensation, or damages » courts of equity awarded specific performance, injunctions, recission Doctrine of laches - you cannot rest on your rights n statutes of limitations n
Law and Legal Reasoning n Doctrine of Stare Decisis – Ignorance of the law is no excuse – Since judges make new law as they decide cases, how can anyone know what to expect when they go into court? » Binding precedent » Non-binding precedent, persuasive authorities » Reporters » cases of first impression - use public policy, data, any related decisions or statutes
Law and Legal Reasoning n Legal Reasoning – What are the facts? – What is the law? – How does the law apply to the facts? Any cases on point? – What are the conclusions?
Law and Legal Reasoning n Legal Reasoning – Deductive - use of syllogism or major premise, minor premise & conclusion – Linear - pieces of rope – Reasoning by analogy - comparing the facts of a previous case to determine whether similar or distinguishable – No right answers
Law and Legal Reasoning n Primary Sources of Law – Federal and state constitutions – Federal and state statutes – Administrative agency regulations – Case law/judgemade law/common law n Secondary Sources of Law – Law review articles – Legal encyclopedias
Law and Legal Reasoning Uniform laws or model laws n Executive agencies and independent regulatory agencies - FDA, SEC, FCC, FTC n Restatements of the law n – summarize common law rules – are not law
Law and Legal Reasoning Differences between civil law and criminal law - see overhead handout n Citations and case titles - see text 1 -6 n Unanimous, majority, concurring, dissenting, and per curiam opinions n En banc decisions n
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