Presentation Five The Stages of Legal Reasoning Formalism

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Presentation Five: The Stages of Legal Reasoning: Formalism, Analogy, and Realism Wilson R. Huhn

Presentation Five: The Stages of Legal Reasoning: Formalism, Analogy, and Realism Wilson R. Huhn © 2013

Tonight’s Presentation, and How It Fits The theory of The Five Types of Legal

Tonight’s Presentation, and How It Fits The theory of The Five Types of Legal Argument that was described in Presentations One through Four is intensely practical for both the study and the practice of law. The theories on Formalism, Analogy and Realism as set forth in Presentation Five are of intellectual interest – a glimpse into the “deep structure” of legal reasoning. 2

There Are Three Types of Legal Reasoning 1. Formalism 2. Analogy 3. Realism 3

There Are Three Types of Legal Reasoning 1. Formalism 2. Analogy 3. Realism 3

Why Are There Three Types of Legal Reasoning? The three types of legal reasoning

Why Are There Three Types of Legal Reasoning? The three types of legal reasoning satisfy the different requirements for a system of law. 4

Three Requirements for Any System of Law • The law must be logical in

Three Requirements for Any System of Law • The law must be logical in order to appeal to reason • The law must be consistent in order to satisfy our sense of fairness • The law must reflect morality in order to command our obedience 5

How the Three Types of Legal Reasoning Satisfy the Requirements for a System of

How the Three Types of Legal Reasoning Satisfy the Requirements for a System of Law • Formalism promotes objectivity and certainty in the law • Analogy promotes consistency and coherence in the law • Realism promotes flexibility and fairness in the law 6

I. THE USE AND LIMITS OF FORMALISM (DEDUCTIVE LOGIC) IN LEGAL ANALYSIS 7

I. THE USE AND LIMITS OF FORMALISM (DEDUCTIVE LOGIC) IN LEGAL ANALYSIS 7

Formalism is the application of a rule according to its terms to the facts

Formalism is the application of a rule according to its terms to the facts of a case. 8

Formalistic Reasoning Is Deductive Logic Law aspires to be logical in form, and clear

Formalistic Reasoning Is Deductive Logic Law aspires to be logical in form, and clear rules lend themselves to logical application. 9

What Formalists Believe Formalists consider law to consist of rules – the blackletter law.

What Formalists Believe Formalists consider law to consist of rules – the blackletter law. They believe that legal reasoning should be purely logical. They believe that there are “right answers” in the law. 10

Cesare Beccaria and the Legal Syllogism “In every criminal case, a judge should come

Cesare Beccaria and the Legal Syllogism “In every criminal case, a judge should come to a perfect syllogism: the major premise should be the general law; the minor premise, the act which does or does not conform to the law; and the conclusion, acquittal or condemnation. ” Cesare Beccaria (1738 -1794) 11

Structure of Legal Rules All legal rules take this form: “If certain facts are

Structure of Legal Rules All legal rules take this form: “If certain facts are true, then a certain legal result applies. ” EXAMPLE: “If a person purposefully and without justification or excuse causes the death of another human being, then the person is guilty of murder. ” 12

What is a Syllogism? • A syllogism is an argument of deductive logic. •

What is a Syllogism? • A syllogism is an argument of deductive logic. • A syllogism has four parts: – – Question Minor Premise Major Premise Conclusion

Example of a Syllogism Question: “Is Socrates mortal? ” Minor Premise: “Socrates is a

Example of a Syllogism Question: “Is Socrates mortal? ” Minor Premise: “Socrates is a human being. ” Major Premise: “All human beings are mortal. ” Conclusion: “Socrates is mortal. ”

The Brief of a Case Is a Syllogism The four parts of a brief

The Brief of a Case Is a Syllogism The four parts of a brief correspond precisely to the four parts of a syllogism: Issue ………………. . Question Facts ………………. . Minor Premise Law …………………. Major Premise Holding ……………. . . Holding

The Brief of a Case Is an Argument of Deductive Logic The brief of

The Brief of a Case Is an Argument of Deductive Logic The brief of a case is an argument of deductive logic stated in categorical form – a “syllogism. ” 16

The Case of the Burglar and the Sleeping Homeowner If a burglar breaks into

The Case of the Burglar and the Sleeping Homeowner If a burglar breaks into a home, sees the homeowner sleeping on the couch, and shoots the homeowner dead. If apprehended, we would no doubt charge the burglar guilty of murder. Murder is defined as the act of “purposefully causing the death of another human being without justification or excuse. 17

Syllogism for the Burglar Case Issue: Is the defendant guilty of murder? Facts: The

Syllogism for the Burglar Case Issue: Is the defendant guilty of murder? Facts: The defendant is a burglar who intentionally killed a sleeping homeowner to reduce the risk of being caught. Law: Any person who purposefully and without justification or excuse causes the death of another human being is guilty of murder. Holding: The defendant is guilty of murder. 18

The Battered Spouse Case A woman was horribly abused by her husband for many

The Battered Spouse Case A woman was horribly abused by her husband for many years. One night he came home drunk, waving a gun and threatening to killer her. He then fell asleep on the couch. She picked up the gun and she shot him dead as he slept. 19

Syllogism for the Battered Spouse Case Issue: Is the defendant guilty of murder? Facts:

Syllogism for the Battered Spouse Case Issue: Is the defendant guilty of murder? Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: Any person who purposefully and without justification or excuse causes the death of another human being is guilty of murder. Holding: ? 20

Questioning Premises In any logical syllogism, you may attack the major premise or the

Questioning Premises In any logical syllogism, you may attack the major premise or the minor premise. In this case, the facts (the minor premise) are not disputed. The law, however, is not clear.

Two Ways to Attack the Major Premise of a Legal Syllogism • Questions of

Two Ways to Attack the Major Premise of a Legal Syllogism • Questions of validity – Is the major premise a correct statement of the law? • Questions of ambiguity – Assuming that the statement of the law is correct, are the terms contained in the rule clear or are they ambiguous?

Questions of Validity Is this a correct statement of the law? : “A person

Questions of Validity Is this a correct statement of the law? : “A person who purposefully and without justification or excuses causes the death of another person is guilty of murder. ”

Questions of Ambiguity What do the terms “purposefully, ” “justification, ” and “excuse” mean

Questions of Ambiguity What do the terms “purposefully, ” “justification, ” and “excuse” mean in the context of this case?

Purposefullness Issue: Did the defendant act purposefully? Facts: The defendant is a woman who

Purposefullness Issue: Did the defendant act purposefully? Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: ? Holding: ? 25

Justification Issue: Did the defendant act in selfdefense? Facts: The defendant is a woman

Justification Issue: Did the defendant act in selfdefense? Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: ? Holding: ? 26

Excuse Issue: Was the defendant legally insane when she killed her husband? Facts: The

Excuse Issue: Was the defendant legally insane when she killed her husband? Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: ? Holding: ? 27

The Reasoning in Judicial Opinions Consists of Chains of Logical Syllogisms Example: Marbury v.

The Reasoning in Judicial Opinions Consists of Chains of Logical Syllogisms Example: Marbury v. Madison

Syllogisms Puzzle Place the following legal syllogisms from Marbury v. Madison in logical order.

Syllogisms Puzzle Place the following legal syllogisms from Marbury v. Madison in logical order.

Syllogism 1 Issue: Does the Supreme Court have original jurisdiction to issue a writ

Syllogism 1 Issue: Does the Supreme Court have original jurisdiction to issue a writ of mandamus to the Secretary of State? Fact: Section 13 of the Judiciary Act is not valid. Law: The Supreme Court may exercise jurisdiction to issue a writ of mandamus to the Secretary of State only if Section 13 of the Judiciary Act is valid. Holding: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. 30

Syllogism 2 Issue: Is Section 13 of the Judiciary Act valid? Fact: Section 13

Syllogism 2 Issue: Is Section 13 of the Judiciary Act valid? Fact: Section 13 of the Judiciary Act is in conflict with the Constitution. Law: Statutes that are in conflict with the Constitution are not valid. Holding: Section 13 of the Judiciary Act is not valid. 31

Syllogism 3 Issue: Are statutes that are in conflict with the Constitution valid? Fact:

Syllogism 3 Issue: Are statutes that are in conflict with the Constitution valid? Fact: The framers intended for any statute in conflict with the constitution to be invalid. Law: The constitution is to be interpreted according to the intent of the framers. Holding: Statutes that are in conflict with the Constitution are not valid. 32

Syllogism 4 Issue: Is Section 13 of the Judiciary Act in conflict with the

Syllogism 4 Issue: Is Section 13 of the Judiciary Act in conflict with the Constitution? Fact: Section 13 of the Judiciary Act grants the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, but Article III, Section 2, Clause 2 of the Constitution prohibits Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States. Law: If one law permits what another law forbids, the laws are in conflict. Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution. 33

Syllogism 5 Issue: Does the Supreme Court have jurisdiction over this case? Fact: This

Syllogism 5 Issue: Does the Supreme Court have jurisdiction over this case? Fact: This is a case involving the Supreme Court's exercise of original jurisdiction to issue a writ of mandamus to the Secretary of State. Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. Holding: The Supreme Court lacks jurisdiction over this case. 34

Syllogism 6 Issue: Does Article III, Section 2, Clause 2 of the Constitution prohibit

Syllogism 6 Issue: Does Article III, Section 2, Clause 2 of the Constitution prohibit Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States? Fact: Unless Article III, Section 2, Clause 2 of the Constitution is interpreted as prohibiting Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, the second sentence of Clause 2 would be rendered meaningless. Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless. Holding: Article III, Section 2, Clause 2 of the Constitution prohibits Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States. 35

Syllogism 7 Issue: Is the Constitution to be interpreted according to the intent of

Syllogism 7 Issue: Is the Constitution to be interpreted according to the intent of the Framers? Fact: The intent of the Framers in drafting the Constitution reflects the original will of the people. Law: The original will of the people determines the meaning of the Constitution. Holding: The Constitution is to be interpreted according to the intent of the Framers. 36

The Key to Solving the Puzzle The holding of a previous syllogism in the

The Key to Solving the Puzzle The holding of a previous syllogism in the chain supplies the major or minor premise of the next syllogism in the chain.

The Relation Among Syllogisms 4, 3 and 2 Syllogism Four: Syllogism Two Holding: Section

The Relation Among Syllogisms 4, 3 and 2 Syllogism Four: Syllogism Two Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution. Issue: Is Section 13 of the Judiciary Act valid? Fact: Section 13 of the Judiciary Act is in conflict with the Constitution. Law: Statutes that are in conflict with the Constitution are not valid. Holding: Section 13 of the Judiciary Act is not valid. Syllogism Three: Holding: Statutes that are in conflict with the Constitution are not valid. 38

The Progression of Syllogisms from General to Specific Base 7 3 Specific Premises 6

The Progression of Syllogisms from General to Specific Base 7 3 Specific Premises 6 4 2 1 5 Result

F 6 H L F 4 H L F 7 H L F 3

F 6 H L F 4 H L F 7 H L F 3 H L F 2 H L F 1 H L F 5 H L 40

The Final Syllogism No. 5: Issue: Does the Supreme Court have jurisdiction over this

The Final Syllogism No. 5: Issue: Does the Supreme Court have jurisdiction over this case? Fact: This is a case involving the Supreme Court's exercise of original jurisdiction to issue a writ of mandamus to the Secretary of State. Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. Holding: The Supreme Court lacks jurisdiction over this case. 41

The Initial Assumptions Syllogism 6 Law: The Constitution may not be interpreted in such

The Initial Assumptions Syllogism 6 Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless. Syllogism 7: Law: The original will of the people determines the meaning of the Constitution. 42

But Law is Not Purely Logical In Marbury, Justice Marshall used a number of

But Law is Not Purely Logical In Marbury, Justice Marshall used a number of other arguments, including policy arguments, to support the conclusion that the Court had the power to declare laws unconstitutional.

The Difference Between Easy Cases and Hard Cases Easy cases may be solved formalistically,

The Difference Between Easy Cases and Hard Cases Easy cases may be solved formalistically, deductively, by applying a clear rule of law to unambiguous facts. (Burglar and sleeping homeowner case) Hard cases are cases where the validity or the meaning of the rule of law is in question. (Battered spouse case)

Why Are There Hard Cases? It may not be clear what the rule of

Why Are There Hard Cases? It may not be clear what the rule of law applies. The applicable rule of law may be ambiguous. Different types of legal arguments may yield different answers as to what the law is The resolution of the case may depend upon identifying the different values that are at stake and balancing these competing policy goals

Legal Reasoning is Logical in Form, but Evaluative in Substance “In form, the growth

Legal Reasoning is Logical in Form, but Evaluative in Substance “In form, the growth of the law is logical …. On the other hand, in substance the growth of the law … is in fact and at bottom the result of more or less definitely understood views of public policy. ” Oliver Wendell Holmes

Stage Theory of Legal Reasoning In hard cases, courts proceed from formalism, to analogy,

Stage Theory of Legal Reasoning In hard cases, courts proceed from formalism, to analogy, to realism, in order to resolve the case. 47

II. FORMALISM, ANALOGY, AND REALISM IN LEGAL ANALYSIS 48

II. FORMALISM, ANALOGY, AND REALISM IN LEGAL ANALYSIS 48

Analogy is the application of a rule to a case because the facts of

Analogy is the application of a rule to a case because the facts of the case are similar to the fact portion of the rule. 49

Edward Levi on Reasoning by Analogy “The basic pattern of legal reasoning is reasoning

Edward Levi on Reasoning by Analogy “The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process …. ” 50

Levi – The Three Steps of Legal Analogies “The steps are these: similarity is

Levi – The Three Steps of Legal Analogies “The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case. ” 51

Three Gestational Surrogacy Cases 1. In re Baby M 2. Johnson v. Calvert 3.

Three Gestational Surrogacy Cases 1. In re Baby M 2. Johnson v. Calvert 3. Buzzanca v. Buzzanca (Formalism) (Analogy) (Realism) 52

1. The Baby M. Case Facts: In this case, because Mrs. Stern was unable

1. The Baby M. Case Facts: In this case, because Mrs. Stern was unable to conceive, Mr. Stern impregnated another woman, Mary Beth Whitehead, who had agreed to serve as a “surrogate” and to give up the child to the couple. After Mrs. Whitehead gave birth she changed her mind attempted to keep the child, claiming that she was the child’s mother under the law. 53

Formalist Analysis in Baby M. Issue: Is Mrs. Whitehead the lawful mother of the

Formalist Analysis in Baby M. Issue: Is Mrs. Whitehead the lawful mother of the child? Facts: Mrs. Whitehead gave birth to the child. Law: A woman who gives birth to a child is the lawful mother of the child. Holding: Mrs. Whitehead is the lawful mother of the child. 54

2. Johnson v. Calvert Facts: A married couple, Mark and Crispina Calvert, could produce

2. Johnson v. Calvert Facts: A married couple, Mark and Crispina Calvert, could produce gametes but Mrs. Calvert could not carry a pregnancy. An embryo was created from their egg and sperm, and the couple entered into a contract with Mrs. Johnson and her husband for the embryo to be implanted into Mrs. Johnson and for her to carry the child to term and to give the child to the Calverts. Upon the birth of the child, Mrs. Johnson changed her mind, and sought to keep the child. Issue: Who is the mother in the eyes of the law? 55

Formalism Based upon the rule that “The woman who gives birth to a child

Formalism Based upon the rule that “The woman who gives birth to a child is the lawful mother of the child, ” the formalist analysis would still find that Mrs. Johnson is the lawful mother of the child. 56

But … If you find the formalist analysis unsatisfactory because the people who drafted

But … If you find the formalist analysis unsatisfactory because the people who drafted the rule did not intend for it to apply to a case of gestational surrogacy, then you might look for other rules of law that you could apply by analogy … 57

Reasoning by Analogy We could draw an analogy to the law of contract We

Reasoning by Analogy We could draw an analogy to the law of contract We could draw an analogy to adoption law. We could draw an analogy to constitutional law 58

Analogy to the Law of Contract Is the surrogacy contract more like a contract

Analogy to the Law of Contract Is the surrogacy contract more like a contract for the sale of goods or a contract for the sale of services? • If it is a sale of goods then the contract is invalid because babyselling is illegal. • If it is a sale of services then it can be argued that the sale of pregnancy services is lawful. 59

Analogy to Adoption Law Is the arrangement between the surrogate and the married couple

Analogy to Adoption Law Is the arrangement between the surrogate and the married couple more like a private adoption or more like foster parenthood? • If it is more like an adoption the arrangement is illegal, because the birth mother must be given a chance to refuse to give up her child following birth • If it is more like foster parenthood, then the child’s real parents may demand the return of the child 60

Analogy to Constitutional Law Is the work of serving as a gestational surrogacy more

Analogy to Constitutional Law Is the work of serving as a gestational surrogacy more like prostitution or slavery or is it simply a legitimate job? • If it is more like prostitution or slavery (forms of exploitation) then the government can prohibit contracts regarding the practice. • If it is a legitimate service, then women and couples should have the right to enter into these arrangements and they should be enforced. 61

Result in Johnson v. Calvert The court found that the surrogacy agreement was not

Result in Johnson v. Calvert The court found that the surrogacy agreement was not a contract for the sale of a baby but rather was a contract for the sale of gestational services, and it enforced the agreement. 62

Realism is the development of a new rule of law by balancing all of

Realism is the development of a new rule of law by balancing all of the relevant interests and values that are at stake. 63

The Two-Part Structure of Policy Arguments • Predictive statement of fact – what consequences

The Two-Part Structure of Policy Arguments • Predictive statement of fact – what consequences will flow from the particular interpretation of the law? • Evaluative judgment – are those consequences consistent with the underlying purposes of the law? 64

3. Buzzanca v. Buzzanca Luanne and John Buzzanca were both infertile. They entered into

3. Buzzanca v. Buzzanca Luanne and John Buzzanca were both infertile. They entered into agreements with an egg donor and a sperm donor and a gestational surrogate to have the donated embryo, genetically unrelated to either of them, implanted into a gestational surrogate. John filed for divorce one month before the child (Jaycee) was born. In the divorce case, he claimed that he and Luanne were not Jaycee's legal parents, while Luanne contended that they were the legal parents. The surrogate who bore Jaycee delivered her to Luanne and made no claim of parentage. 65

Formalist Analysis in Buzzanca The trial court used formalist analysis and yet made an

Formalist Analysis in Buzzanca The trial court used formalist analysis and yet made an unprecedented decision – he ruled that Jaycee was born without legal parents. In finding that Luanne was not the lawful mother, the court stated: “One, there's no genetic tie between Luanne and the child. Two, she is not the gestational mother. Three, she has not adopted the child. That, folks, to me, respectfully, is clear and convincing evidence that she's not the legal mother. ” 66

Analogical Reasoning in Buzzanca The appellate court reviewed several of the analogies that had

Analogical Reasoning in Buzzanca The appellate court reviewed several of the analogies that had been used in Johnson v. Calvert, but found that they were not applicable because there was no genetic relation between the wife and the child in this case. It did find an analogy that it thought appropriate – because the husband had consented to the creation of the embryo, it found this case analogous to a husband’s consent to artificial insemination by donor (AID) of his wife, and ruled that John and Luanne were Jaycee’s lawful parents. 67

But … If you find that none of the analogies to other cases is

But … If you find that none of the analogies to other cases is particularly persuasive, then you might find it necessary to develop a new rule of law … 68

Realist Analysis Using realism, a court balances all of the relevant values and interests

Realist Analysis Using realism, a court balances all of the relevant values and interests that are at stake in developing a new rule of law and arriving at a conclusion. 69

Values to Be Considered in Developing a Parentage Rule for Gestational Surrogacy Cases •

Values to Be Considered in Developing a Parentage Rule for Gestational Surrogacy Cases • Protecting the intentions of the parties to a contract or their consent to a procedure • Guarding against the exploitation of women’s bodies • Establishing certainty in the law of parentage • Preserving the opportunity for infertile couples to procreate • Protecting the rights of birth mothers and genetic parents • Protecting the best interests of children • Protecting the rights of women to work 70

How Were the Foregoing Values Discovered? In the course of searching for analogous cases

How Were the Foregoing Values Discovered? In the course of searching for analogous cases – cases that have similar facts or cases that involve a similar constellation of values – we will identify the values that are at stake in the case at hand. 71

Progression from Formalism, to Analogy, to Realism • Easy cases can be resolved formalistically,

Progression from Formalism, to Analogy, to Realism • Easy cases can be resolved formalistically, by the application of an existing rule according to its terms. • In harder cases, where existing rules do not literally apply, an existing rule may be applied by analogy. • In the hardest cases, where no existing rules apply according to their terms or by analogy, a new rule must be developed. 72

Analogy is the Bridge Between Formalism and Realism • In the easiest cases, courts

Analogy is the Bridge Between Formalism and Realism • In the easiest cases, courts use formalism – applying rules according to their terms. • In somewhat harder cases, courts use formalist analogies – applying the rules of cases which are very similar on the facts. • In still harder cases, courts draw realist analogies to cases which have similar values and interests at stake – applying the rules of those cases to the case to be decided. • In the hardest cases of all, courts balance all of the relevant values and interests identified in the previous stage to develop a new rule to decide the case. 73

The Stages of Legal Reasoning in Progressively Harder Cases Formalism Formalist Analogies Realism 74

The Stages of Legal Reasoning in Progressively Harder Cases Formalism Formalist Analogies Realism 74

III. THE STAGES OF LEGAL REASONING IN THE EVOLUTION OF RULES AND STANDARDS

III. THE STAGES OF LEGAL REASONING IN THE EVOLUTION OF RULES AND STANDARDS

Rules “Stop at red light. ” • Rules are clear, but may be unfair.

Rules “Stop at red light. ” • Rules are clear, but may be unfair. – Rules are efficient in situations where facts of different cases are basically similar. • Rules are difficult to create but easy to apply. – Example: specific emissions limits for industries • Rules are applied formalistically – Do the facts of the case match the fact portion of the rule? 76

Standards “Proceed cautiously on yellow light” • Standards are fair, but may be ambiguous

Standards “Proceed cautiously on yellow light” • Standards are fair, but may be ambiguous – Standards are efficient where it is necessary to cover many different fact situations • Standards are easy to create but difficult to apply – Example – “reasonable person” standard in tort law • Standards are applied realistically – What are the facts, what are the underlying values and interests to be considered, and how are those values and interests involved in the case to be decided? 77

Evolution of a Rule into a Standard Rules evolve into standards as the courts

Evolution of a Rule into a Standard Rules evolve into standards as the courts recognize exceptions to a rule. As exceptions accumulate, the courts may recognize an underlying policy that determines whether to recognize the exception to the rule. Eventually, it is easier to state the law in terms of the standard rather than in terms of the rule and its many exceptions. 78

Example of a Rule Turning into a Standard At common law, there developed numerous

Example of a Rule Turning into a Standard At common law, there developed numerous exceptions to the rule against hearsay. In 1969, the Advisory Committee on Evidence recommended the following standard in place of the specific hearsay exceptions: “A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy. ” 79

Evolution of a Standard into a Rule Standards evolve into rules as the courts

Evolution of a Standard into a Rule Standards evolve into rules as the courts acquire experience interpreting the standard. Factual similarities between the cases applying the standard may allow the law to be articulated in terms of a rule. 80

Example of Standard Evolving Into a Rule Law is, “Persons may proceed at a

Example of Standard Evolving Into a Rule Law is, “Persons may proceed at a reasonable rate of speed. ” Judicial precedent may establish that 120 miles per hour is an unlawful rate of speed under any circumstances, leading to the adoption of a rule. 81

Another Example of a Standard Evolving Into a Rule Congress adopted the residual exception

Another Example of a Standard Evolving Into a Rule Congress adopted the residual exception to the rule against hearsay in Rule 807, admitting statements which have “equivalent circumstantial guarantees of trustworthiness” as the other hearsay exceptions and which are more probative of a material fact than any other evidence. As the courts interpret this standard, there may emerge factual similarities in cases where the residual exception is recognized, such as the admission of grand jury testimony in certain circumstances. At some point in time, it may be easier to express the law in terms of rules rather than as a standard. 82

Analogy is the Bridge Between Formalism and Realism • As rules evolve into standards,

Analogy is the Bridge Between Formalism and Realism • As rules evolve into standards, the courts draw realist analogies among all of the cases making exceptions to the rules. • As standards evolve into rules, the courts draw formalist analogies among all of the cases applying the standards. 83

Realist Analogies and Formalist Analogies Help the Law to Evolve • Cases creating exceptions

Realist Analogies and Formalist Analogies Help the Law to Evolve • Cases creating exceptions to rules Standards Realist Analogies • Cases interpreting standards Formalist Analogies Rules 84

The Law Moves from Rules to Standards and Back Again • • Doctrine of

The Law Moves from Rules to Standards and Back Again • • Doctrine of Laches Statutes of Limitation Discovery Rule, other tolling rules Statutes of Repose 85

Why Are There Three Stages of Legal Reasoning? • Formalism promotes objectivity and certainty

Why Are There Three Stages of Legal Reasoning? • Formalism promotes objectivity and certainty in the law • Analogy promotes consistency and coherence in the law • Realism promotes flexibility and fairness in the law 86

Not Hierarchical Stages, But Stages of a Cycle Formalism Realism Analogy 87

Not Hierarchical Stages, But Stages of a Cycle Formalism Realism Analogy 87

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