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Thinking Like a Lawyer


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Table of Contents

* Preface * Is There Legal Reasoning? * 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 * 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 * 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 * 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 * 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 * 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 * 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 * 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 * 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 * 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 * 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

Promotional Information

This book will belong on every law professor's and law student's bookshelf--and on many others' bookshelves as well. -- Lawrence A. Alexander, University of San Diego School of Law, author of Is There a Right of Freedom of Expression? Schauer is a leading scholar of jurisprudence and legal process, and his new book is as comprehensive, thorough, and sophisticated an introduction to legal reasoning as it is a lucid one. All of the bases are covered, and law students, teachers, practicing lawyers, and judges alike will gain perspective and insight from seeing the entire range of legal reasoning techniques laid out before them. -- Richard A. Posner, Judge, U.S. Court of Appeals for the Seventh Circuit, author of How Judges Think Thinking Like a Lawyer is by far the best available introduction to legal reasoning, of interest to law students and their teachers alike. It should be enlightening to the general reader as well, who will learn what, for better and perhaps for worse, distinguishes 'thinking like a lawyer' from other approaches to analyzing social problems. -- Sanford V. Levinson, University of Texas Law School, author of Our Undemocratic Constitution: Where the Constitution Goes Wrong Thinking Like a Lawyer is well-designed to work for first-year law school classes. It covers the most important themes relating to law and legal reasoning, and manages to do so in ways that are accessible and thought-provoking. -- Brian H. Bix, University of Minnesota, author of Jurisprudence: Theory and Context

About the Author

Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia.


A welcome complement to [Edward] Levi's approach, as well as being easier for the legal novice to understand. Yet Schauer's book also offers the lawyer and scholar useful perspective on what he or she does. -- Brian Leiter Times Literary Supplement 20100212 Thinking Like a Lawyer is excellent reading material for anyone wishing a deeper and more nuanced--even a more magnanimous--understanding of the motivations behind law's often convoluted pronouncements. -- John Azzolini Law Library Journal 20100201

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