This seminar offers an in-depth theoretical (and occasionally practical) examination of the central themes of legal reasoning and legal argument. The seminar will explore the nature of rules and rule-based reasoning; the idea of precedent and stare decisis; reasoning by analogy; law's use of authority and authorities and the principles of mandatory, permissible, and prohibited authorities; reason-giving and the controversy over unpublished and non-precedential opinions; common law reasoning and the distinction (if any) between common law and civil law approaches; judicial opinions and opinion-writing; formalism and functionalism in legal decision-making; and issues of presumptions, deference, and burdens of proof and persuasion. Several parts of the seminar will address Legal Realist challenges to the traditional picture of legal reasoning.
Students are expected to attend weekly seminar sessions and to complete a paper on one of the themes of the seminar. The instructor is happy to read outlines and drafts, and to discuss the paper at length prior to final submission.
Course materials will consist of portions of Frederick Schauer, Thinking Like a Lawyer (Harvard, 2009), Frederick Schauer, Playing By the Rules (Oxford, 1991), illustrative public and private law cases, and selections from books and articles from the legal, historical, jurisprudential, philosophical, and social science literatures.