Law and Legal Reasoning Enforceable rules governing relationships among individuals and between individuals and their society Enforceable rules governing relationships among individuals and between individuals and their society Judges use their personal worldview and legal philosophies to apply the law to specific disputes Judges use their personal worldview and legal philosophies to apply the law to specific disputes

Law and Legal Reasoning Natural law 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 Legal Positivism Legal Positivism –the written law is supreme Legal Realism 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 Judicial interpretation 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 Common Law 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 Doctrine of laches - you cannot rest on your rights statutes of limitations statutes of limitations

Law and Legal Reasoning Doctrine of Stare Decisis 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 Legal Reasoning 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 Legal Reasoning 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 Primary Sources of Law Primary Sources of Law –Federal and state constitutions –Federal and state statutes –Administrative agency regulations –Case law/judgemade law/common law Secondary Sources of Law Secondary Sources of Law –Law review articles –Legal encyclopedias

Law and Legal Reasoning Uniform laws or model laws Uniform laws or model laws Executive agencies and independent regulatory agencies - FDA, SEC, FCC, FTC Executive agencies and independent regulatory agencies - FDA, SEC, FCC, FTC Restatements of the law Restatements of the law –summarize common law rules –are not law

Law and Legal Reasoning Differences between civil law and criminal law - see overhead handout Differences between civil law and criminal law - see overhead handout Citations and case titles - see text 1-6 Citations and case titles - see text 1-6 Unanimous, majority, concurring, dissenting, and per curiam opinions Unanimous, majority, concurring, dissenting, and per curiam opinions En banc decisions En banc decisions