Jurisprudence and legal reasoning 2011

Jurisprudence and Legal Jurisprudence and Legal ReasoningReasoning

(or, If You Give a Moose a (or, If You Give a Moose a Muffin…)Muffin…)

Copyright Adam J. MacLeod 2010, 2011Copyright Adam J. MacLeod 2010, 2011

Formal Legal ReasoningFormal Legal ReasoningThe IssueThe Issue

What is this dispute about?What is this dispute about? What legal doctrine(s) do these facts What legal doctrine(s) do these facts

implicate?implicate? Are the law and the facts:Are the law and the facts:

Certain orCertain or Indeterminate?Indeterminate?

Formal Legal ReasoningFormal Legal ReasoningThe SyllogismThe Syllogism

Major Premise: What rule governs Major Premise: What rule governs the case?the case?

Minor Premise: What are the relevant Minor Premise: What are the relevant facts of the case?facts of the case?

What conclusion (holding) follows What conclusion (holding) follows from the combination of premises?from the combination of premises?

Formal Legal Reasoning:Formal Legal Reasoning:The SyllogismThe Syllogism

Major Premise (a/k/a The Rule): Whoever Major Premise (a/k/a The Rule): Whoever shall willfully take the life of another shall be shall willfully take the life of another shall be punished by death.punished by death.

Minor Premise (a/k/a The Relevant Facts): Minor Premise (a/k/a The Relevant Facts): Billy waited until Sam was hunched over his Billy waited until Sam was hunched over his desk, then snuck up behind him and stabbed desk, then snuck up behind him and stabbed him in the back eight times, killing him.him in the back eight times, killing him.

Conclusion (a/k/a The Holding, Judgment, or Conclusion (a/k/a The Holding, Judgment, or Verdict): Billy is guilty of murder and shall be Verdict): Billy is guilty of murder and shall be executed.executed.

Formal Legal Reasoning:Formal Legal Reasoning:Speluncean ExplorersSpeluncean Explorers

Major Premise: What rule governs Major Premise: What rule governs the case?the case?

Minor Premise: What are the relevant Minor Premise: What are the relevant facts of the case?facts of the case?

Formal Legal Reasoning:Formal Legal Reasoning:Speluncean ExplorersSpeluncean Explorers

Major Premise: Whoever shall willfully Major Premise: Whoever shall willfully take the life of another shall be take the life of another shall be punished by death.punished by death.

Minor Premise: Upon the method Minor Premise: Upon the method proposed by Whetmore, and agreed to proposed by Whetmore, and agreed to by the rest, the explorers killed and by the rest, the explorers killed and ate Whetmore without his consent.ate Whetmore without his consent.

Conclusion: ?Conclusion: ?

Formal Legal Reasoning:Formal Legal Reasoning:United States v. Peter CalawayUnited States v. Peter Calaway

Major Premise: What rule?Major Premise: What rule?

Minor Premise: What relevant facts?Minor Premise: What relevant facts?

Formal Legal Reasoning:Formal Legal Reasoning: United States v. Peter Calaway United States v. Peter Calaway Major Premise: Communications between Major Premise: Communications between

a psychotherapist and his patient are not a psychotherapist and his patient are not admissible in a criminal proceeding admissible in a criminal proceeding against the patient, unless… ?against the patient, unless… ?

Minor Premise: Calaway expressed his Minor Premise: Calaway expressed his thoughts about shooting Judge Rivers thoughts about shooting Judge Rivers during a therapy session with his during a therapy session with his psychiatrist, Dr. Vandall.psychiatrist, Dr. Vandall.

IndeterminacyIndeterminacy Legal indeterminacy, either:Legal indeterminacy, either:

We don’t know what rule applies—We don’t know what rule applies—uncertaintyuncertainty

We have a rule, but it is ambiguous—We have a rule, but it is ambiguous—ambiguityambiguity

Factual indeterminacy, either:Factual indeterminacy, either: We don’t know what happened—uncertaintyWe don’t know what happened—uncertainty The facts admit of more than one rational The facts admit of more than one rational

inference—ambiguityinference—ambiguity

IndeterminacyIndeterminacy Why is this a difficult case?Why is this a difficult case?

Uncertainty or ambiguity about the rule: Is Uncertainty or ambiguity about the rule: Is there (or ought there be) an exception to there (or ought there be) an exception to the testimonial privilege in cases of the testimonial privilege in cases of serious threats of harm?serious threats of harm?

Uncertainty or ambiguity about the facts: ?Uncertainty or ambiguity about the facts: ?

Two Historical Responses to Two Historical Responses to IndeterminacyIndeterminacy

Failure of Formalism

Realism: The job of the lawyer is topredict what the judge will do.

Positivism: The job of the lawyer is todiscern the reason(s) for the rule

within the legal system.

The Logic of Legal RealismThe Logic of Legal Realism If you give a moose a muffin, what If you give a moose a muffin, what

will he do with it?will he do with it? Either:Either:

There is no way to know (in which case, There is no way to know (in which case, prediction is impossible).prediction is impossible).

oror He’ll eat it, of course (in which case He’ll eat it, of course (in which case

judgment is impossible).judgment is impossible).

If You Give the Supreme If You Give the Supreme Court a Testimonial Court a Testimonial

Privilege Challenge…Privilege Challenge… What is the Supreme Court likely to do What is the Supreme Court likely to do

with the testimonial privilege?with the testimonial privilege?

This is the only question that the Realists This is the only question that the Realists would permit the Fourteenth Circuit Court would permit the Fourteenth Circuit Court of Appeals to ask.of Appeals to ask.


Privilege Challenge…Privilege Challenge… What is the Supreme Court likely to do What is the Supreme Court likely to do

with the testimonial privilege?with the testimonial privilege? This is the only question that the Realists This is the only question that the Realists

would permit the Fourteenth Circuit Court would permit the Fourteenth Circuit Court of Appeals to ask.of Appeals to ask.

Realism provides no standard on which to Realism provides no standard on which to render judgment. There are no rules, only render judgment. There are no rules, only predictions.predictions.


Privilege Challenge…Privilege Challenge… What is the Supreme Court likely to do with the What is the Supreme Court likely to do with the

testimonial privilege?testimonial privilege? This is the only question that the Realists would This is the only question that the Realists would

permit the Fourteenth Circuit Court of Appeals to permit the Fourteenth Circuit Court of Appeals to ask.ask.

Realism provides no standard on which to render Realism provides no standard on which to render judgment. There are no rules, only predictions.judgment. There are no rules, only predictions.

Bottom line: whoever has the power (five Bottom line: whoever has the power (five justices of the Supreme Court, Whetmore’s justices of the Supreme Court, Whetmore’s companions) will prevail.companions) will prevail.

Historical Responses to Historical Responses to IndeterminacyIndeterminacy


Realism

Positivism

Legal Crit: The job of thelawyer is to challenge power.

The Logic of CriticalThe Logic of CriticalLegal StudiesLegal Studies

Who is the most powerful actor here?Who is the most powerful actor here? If Judge Rivers is the most powerful, the If Judge Rivers is the most powerful, the

privilege should apply.privilege should apply. But on this logic, the privilege should But on this logic, the privilege should

always apply.always apply. An actor who communicates a threat to An actor who communicates a threat to

his psychotherapist can never be his psychotherapist can never be prosecuted.prosecuted.

This is a dead end.This is a dead end.

The Logic of CriticalThe Logic of CriticalLegal StudiesLegal Studies

Who is the most powerful actor here?Who is the most powerful actor here? If Agent Calaway is the most powerful, If Agent Calaway is the most powerful,

the privilege should not apply.the privilege should not apply. But on this logic, the privilege should But on this logic, the privilege should

never apply.never apply. An actor who communicates with his An actor who communicates with his

therapist can never depend on secrecy.therapist can never depend on secrecy. This also is a dead end.This also is a dead end.



Realism

Positivism

Critical Legal Studies

The Logic of PositivismThe Logic of Positivism What does the American legal What does the American legal

tradition say about this problem?tradition say about this problem? What authorities support this rule?What authorities support this rule? Sources of authority:Sources of authority:

Judicial decisions, administrative Judicial decisions, administrative decisions, and other precedentdecisions, and other precedent

Historical development of the rule or Historical development of the rule or doctrinedoctrine

Legislative historyLegislative history

The Logic of PositivismThe Logic of Positivism Deduction from binding authority:Deduction from binding authority:

Has Congress elsewhere defined the Has Congress elsewhere defined the scope of the privilege?scope of the privilege?

Has the U.S. Supreme Court defined the Has the U.S. Supreme Court defined the scope of the privilege?scope of the privilege?

If a superior authority has defined the If a superior authority has defined the term, plug that definition into the major term, plug that definition into the major premise in your formal syllogism.premise in your formal syllogism.

The Logic of PositivismThe Logic of Positivism Induction from persuasive authority:Induction from persuasive authority:

How have other federal circuit courts defined How have other federal circuit courts defined the scope of the privilege?the scope of the privilege?

How have federal district courts and state How have federal district courts and state courts defined the scope of the privilege?courts defined the scope of the privilege?

Are there any common factors among those Are there any common factors among those decisions that have found an exception to the decisions that have found an exception to the privilege?privilege?

If so, can a general rule be induced from those If so, can a general rule be induced from those factors?factors?

The Logic of PositivismThe Logic of Positivism Inductive reasoning from persuasive Inductive reasoning from persuasive

authority:authority: In every other case in which courts have In every other case in which courts have

found an exception to the privilege, X found an exception to the privilege, X has been true.has been true.

X is a sufficient condition not to apply X is a sufficient condition not to apply the privilege.the privilege.

The Logic of PositivismThe Logic of Positivism Other sources of reasons:Other sources of reasons:

Common law rules from which a Common law rules from which a statutory rule was derivedstatutory rule was derived

Previous statutes, of which this statute Previous statutes, of which this statute is an amended versionis an amended version

Legislative historyLegislative history Canons of statutory interpretationCanons of statutory interpretation Comparable statutes and statutes that Comparable statutes and statutes that

use the same termuse the same term

The Logic of PositivismThe Logic of Positivism What does the lawyer do when the authorities What does the lawyer do when the authorities

within the legal tradition are inconclusive?within the legal tradition are inconclusive? See:See:

Ambiguity: What counts as an establishment of Ambiguity: What counts as an establishment of religion within the meaning of the First Amendment?religion within the meaning of the First Amendment?

Legal discretion: What counts as a “reasonable” Legal discretion: What counts as a “reasonable” search and seizure under the Fourth Amendment?search and seizure under the Fourth Amendment?

Factual discretion: Did the speluncean explorers act Factual discretion: Did the speluncean explorers act willfully when they killed Whetmore in order to willfully when they killed Whetmore in order to survive?survive?



Realism

Positivism


Consequentialism

NeutralityLiberalism

Perfectionism

The Logic of The Logic of ConsequentialismConsequentialism

What is the best aggregate result for What is the best aggregate result for maximizing _______ ?maximizing _______ ?

This is policy (prudential) analysisThis is policy (prudential) analysis Best legal rules to maximize health Best legal rules to maximize health

insurance coverageinsurance coverage Best legal rules to improve educational Best legal rules to improve educational

achievementachievement Best legal rule to ensure impartiality of Best legal rule to ensure impartiality of

federal judgesfederal judges

The Logic of The Logic of ConsequentialismConsequentialism

But policy-making is the job of legislatures. But policy-making is the job of legislatures. Separation of powers requires courts to defer Separation of powers requires courts to defer to the policy judgments of legislatures. to the policy judgments of legislatures. Otherwise, no democracy.Otherwise, no democracy.

Also, consequentialism does not answer moral Also, consequentialism does not answer moral questions:questions: How many persons may you kill in order to make How many persons may you kill in order to make

the greatest number of people happy?the greatest number of people happy? What lies may you tell in order to maintain an What lies may you tell in order to maintain an

appearance of impartiality?appearance of impartiality? How many speluncean explorers may the other How many speluncean explorers may the other

explorers eat in order to save the lives of the non-explorers eat in order to save the lives of the non-eaten?eaten?

The Logic of Neutrality The Logic of Neutrality LiberalismLiberalism

Which rule will be strictly neutral as between Which rule will be strictly neutral as between competing conceptions of the good?competing conceptions of the good?

Works well for purely political questions:Works well for purely political questions: Why is federalism a good idea?Why is federalism a good idea? What balance of power between branches of What balance of power between branches of

government will best secure freedom for citizens?government will best secure freedom for citizens? Why is the appearance of impartiality an Why is the appearance of impartiality an

important attribute for the federal judiciary?important attribute for the federal judiciary? Should judges remain impartial between litigants?Should judges remain impartial between litigants?

The Logic of Neutrality The Logic of Neutrality LiberalismLiberalism

Does not answer contested questions on Does not answer contested questions on which there is no neutral ground:which there is no neutral ground: Should the state privilege conjugal marriage, Should the state privilege conjugal marriage,

polyandry, and/or same-sex intimacy?polyandry, and/or same-sex intimacy? Should women have the right to have abortions, Should women have the right to have abortions,

or should the unborn have the right to live?or should the unborn have the right to live? Should speluncean explorers have the right to Should speluncean explorers have the right to

kill and eat one another in order to survive?kill and eat one another in order to survive? It is the job of the lawmaker to choose It is the job of the lawmaker to choose

among conceptions of the good: persons among conceptions of the good: persons should not kill and eat other persons.should not kill and eat other persons.

Perfectionism: A Perfectionism: A Comprehensive Solution to Comprehensive Solution to

IndeterminacyIndeterminacy


Realism

Positivism


Consequentialism

NeutralityLiberalism

PerfectionismNatural

Law,PerfectionistLiberalism

Perfectionism:Perfectionism:A Comprehensive Theory of A Comprehensive Theory of

JusticeJustice What is the best rule, based upon the best What is the best rule, based upon the best

reasons?reasons? Natural law and positive lawNatural law and positive law

Where positive law resolves the question from Where positive law resolves the question from within the tradition, and is not unjust, it should within the tradition, and is not unjust, it should control. Internal reasons are to be preferred control. Internal reasons are to be preferred over external reasons for the integrity of the over external reasons for the integrity of the legal system.legal system.

Where there is no positive law on the question, Where there is no positive law on the question, a new rule can be derived from more a new rule can be derived from more fundamental principles.fundamental principles.


JusticeJustice What is the best rule, based upon the What is the best rule, based upon the

best reasons?best reasons? Moral questions and prudential Moral questions and prudential

questionsquestions Moral rules are derived from fundamental Moral rules are derived from fundamental

principles, which are known to all and principles, which are known to all and binding upon all.binding upon all.

Prudential rules are derived from specialized Prudential rules are derived from specialized knowledge about the likely consequences of knowledge about the likely consequences of competing choices.competing choices.


JusticeJusticeRule

PositiveLaw

Prudential Questions:Consequential Reasons(Legislation & Policy)

Political Questions:Structural Reasons(Constitutional Law)

Legal Questions:Principled Reasons

(Perfectionism)


JusticeJustice When formalism is sufficient, use it.When formalism is sufficient, use it. When formalism fails:When formalism fails:

First, construct an argument from authorities First, construct an argument from authorities within the legal system (positive law).within the legal system (positive law).

Second, demonstrate how those authorities Second, demonstrate how those authorities support the rule of law (constitutional law).support the rule of law (constitutional law).

Third, show how those authorities are derived Third, show how those authorities are derived from, and consistent with, more fundamental from, and consistent with, more fundamental moral principles (natural law).moral principles (natural law).

Fourth, explain why your proposed holding Fourth, explain why your proposed holding results in the least problematic consequences results in the least problematic consequences (policy).(policy).

Realism’s RevengeRealism’s Revenge Judges disagree about the scope and Judges disagree about the scope and

persuasiveness of different jurisprudential persuasiveness of different jurisprudential systems.systems. 77thth Circuit Judge: “Sensible pragmatic judges” Circuit Judge: “Sensible pragmatic judges”

will consider “systemic, including institutional, will consider “systemic, including institutional, consequences” in order to reach the best consequences” in order to reach the best “policy judgments.”“policy judgments.”

1010thth Circuit Judge: It is not the job of the judge Circuit Judge: It is not the job of the judge to “to “decide cases based on his or her views of decide cases based on his or her views of social policy .” Instead, the judge should social policy .” Instead, the judge should “enforce the will or intent of the People, as “enforce the will or intent of the People, as expressed in the text of” the Peoples’ laws.expressed in the text of” the Peoples’ laws.

Realism’s RevengeRealism’s Revenge Would you tailor your arguments Would you tailor your arguments

differently in the 7differently in the 7thth Circuit than in Circuit than in the 10the 10thth Circuit? Circuit?

What would an effective appellate What would an effective appellate advocate do?advocate do?

What would an ethical advocate do?What would an ethical advocate do?

Jurisprudence and legal reasoning 2011

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Transcript of Jurisprudence and legal reasoning 2011