Thinking Like a Lawyer

An Introduction to Legal Reasoning

Kenneth J. Vandevelde

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429973888
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Law students, law professors, and lawyers frequently refer to the process of "thinking like a lawyer, " but attempts to analyze in any systematic way what is meant by that phrase are rare. In his classic book, Kenneth J. Vandevelde defines this elusive phrase and identifies the techniques involved in thinking like a lawyer. Unlike most legal writings, which are plagued by difficult, virtually incomprehensible language, this book is accessible and clearly written and will help students, professionals, and general readers gain important insight into this well-developed and valuable way of thinking.

Updated for a new generation of lawyers, the second edition features a new chapter on contemporary perspectives on legal reasoning. A useful new appendix serves as a survival guide for current and prospective law students and describes how to apply the techniques in the book to excel in law school.

PART ONE

Basic Legal Reasoning

1

IDENTIFYING APPLICABLE LAW

The first step in legal reasoning is to identify the law that is potentially applicable to a particular situation. Law is generally of two types.

One type is case law or, as it is sometimes referred to in American courts, “common law.” This is law created by a court for the purpose of deciding a specific dispute. Case law is announced by a court in the written opinion in which it decides the dispute. Under the doctrine of stare decisis, discussed at length in chapter 2, a judicial decision is binding on future courts deciding similar cases. That is, later cases must be decided in a way that is consistent with earlier cases, which are known as precedents.

The other type is enacted law. This consists of laws adopted, usually by a legislature or other elected body, not to decide a single dispute but to create general rules of conduct. Enacted law governs all persons subject to the power of the government in all future situations in which the rule by its terms applies. Enacted law includes, for example, constitutions, statutes, treaties, executive orders, and administrative regulations. For the sake of brevity, the different forms of enacted law are often referred to collectively here as statutes.

Two differences between case law and enacted law are of particular importance to the process of legal reasoning. First, enacted law binds the courts. Case law, however, may be changed by a court with sufficient justification.¹ Second, enacted law is cast in authoritative language; that is, the precise words of an enacted law rule are clear and fixed until such time as the enacting body modifies them. Case law, by contrast, often cannot be captured by a single authoritative and uncontroversial formulation. Rather, lawyers sometimes disagree among themselves concerning the law that was established by a particular case. The result of these differences is that the application of case law is considerably more flexible than the application of enacted law. As will be seen, a court frequently can manipulate the language of a rule from a case or even overrule the case entirely, whereas the language of enacted law is subject to judicial interpretation but cannot itself be manipulated or modified by the court. This means that the application of enacted law tends to involve principally the interpretation of the text of the statute, whereas the application of case law may involve subtle refinements of prior articulations of the law, the introduction of new qualifications or exceptions, or the outright rejection of a well-established rule of law.

As is discussed in this and later chapters, the method by which the lawyer identifies, analyzes, synthesizes, and applies both case law and enacted law depends upon which governmental entity creates the law. This chapter thus begins with a very brief introduction to the sources of American law, focusing on the role of each governmental entity in producing a particular type of law, with special emphasis on the judicial branch. Following that introduction, the discussion turns to its principal concern—the process of identifying potentially applicable rules of law.

I. THE SOURCES OF AMERICAN LAW

Lawyers organize the law by subject matter. A very basic distinction is between public law and private law. Public law prescribes the rights, duties, and other legal relationships that exist among governmental entities or between the government and private persons. Private law prescribes the rights, duties, and other legal relationships that exist among private persons. In both of these definitions, the term person includes corporations and other entities that the law recognizes as having legal personality.

Examples of public law include constitutional law and criminal law. For example, when a crime is committed, the perpetrator is prosecuted by the state, rather than by private individuals, because the duty imposed by criminal law is to the state.

Examples of private law include contracts and torts. The legal relationships created by these bodies of law exist between private persons. If a contract is breached, the party injured by the breach, rather than the state, sues the party who breached because the contractual duty is to the other party to the contract.

Lawyers also distinguish between substantive law and procedural law. Substantive law is the body of rules that creates rights, duties, and other legal relationships. Procedural law, although it technically does create various kinds of legal relationships, addresses the manner in which substantive law is enforced through the courts. The procedural rules applicable in criminal cases generally are different from those applicable in civil cases.

None of these distinctions is completely sharp. All of them oversimplify to some extent. For example, procedural law shapes substantive law. An ancient maxim of the law holds that “where there is no remedy, there is no right.” To say that I have a certain right arguably is an insignificant statement unless I can enforce that right in the courts. Thus, a legal relationship created by substantive law has practical significance only to the extent that it can be enforced through procedural law. These distinctions must be qualified in other ways as well. For example, as will be seen in chapters 7 and 8, certain contract rules function much as tort rules, while certain tort rules seem to be based on contract principles.

Although these categories are useful tools for organizing large bodies of law, they are of limited importance for the topic of this book, the process of legal reasoning. Legal reasoning functions in much the same way, whether the law is public or private, substantive or procedural.

Some ways of classifying the law are important for the purposes of understanding the legal reasoning process. We turn to those now.

A. Enacted Law

The supreme law in the American legal system is the United States Constitution, which sets down principles of law binding on all branches of the federal and state governments. The Constitution was drafted in 1787 by a convention in Philadelphia and was ratified by each of the states. The Constitution begins with the words “We, the People of the United States” and purports to have been adopted directly by the people, who are regarded as the ultimate source of law in the United States.

The Constitution establishes three branches of the federal government: legislative, executive, and judicial. The legislative and executive branches produce enacted law and are discussed in this subsection. The judicial branch produces case law and will be discussed in the next subsection.

Each of the fifty states has a constitution that establishes a similar tripartite government. Each state has a legislature, an executive branch headed by a governor, and a judicial branch headed by an appellate court, usually called a supreme court. These state entities function similarly to their federal counterparts, but are bound by the state constitution as well as by the U.S. Constitution. For the sake of brevity, the discussion of the role of each branch in creating law will refer primarily to the federal government.

1. THE LEGISLATIVE PROCESS

The federal legislative branch is Congress, whose members are elected by the people and which is empowered by the Constitution to enact statutes governing various subjects of federal concern, such as interstate commerce and national defense. Congress consists of the Senate, in which every state is represented by two senators, and the House of Representatives, whose members represent districts of roughly equal population. The number of representatives from each state thus is proportionate to its population. A senator serves for six years, while a representative serves for two. Both can be reelected an indefinite number of times.

As long as a congressional statute is consistent with the Constitution, that statute binds all persons subject to the laws of the United States. Further, under the doctrine of the separation of powers, the legislative branch is the lawmaking branch, and thus the executive and judicial branches are obligated to apply and enforce the statutes enacted by Congress.

The enactment of legislation begins when a senator or a representative introduces a bill, essentially a proposed legislative enactment. Often, a bill is introduced by several individuals, known as “sponsors” of the legislation. After a bill is proposed, it is assigned a number, printed, and usually referred to one of many committees for consideration. Each committee has jurisdiction over legislation relating to certain subjects. For example, legislation relating to international relations is referred to the Committee on Foreign Relations in the Senate and to the Committee on Foreign Affairs in the House. Occasionally, a bill is referred to more than one committee.

If the bill is of sufficient importance, the committee is likely to hold hearings, in which interested persons, referred to as witnesses, are invited to testify about the legislation. Those not invited to testify in person may submit written comments. Hearings generally are transcribed, and any written comments are included with the transcription. Before taking action, the committee holds a markup session, in which the bill is likely to be amended to take into account suggestions or objections by committee members. The markup sessions are not transcribed, and thus the record is often silent with respect to the reasons that various changes in the language of the bill were made. The committee then votes on whether to report the bill to the full house. If the committee votes to report the bill, the committee staff will prepare a report explaining the legislation.

Next, the bill is debated and then voted upon by the full house. These debates are transcribed and published in the Congressional Record. Members who are not present for the debate are permitted to insert their comments into the record, although the record will identify these remarks as not having been spoken on the floor. In the course of the debate, members may propose amendments, which will be voted upon before the members vote upon the bill itself.

The process is similar in both the Senate and the House. Assuming that a bill passes both houses, it likely will have been amended so that the versions adopted are different. Accordingly, each house appoints members of a conference committee, which meets to draft a compromise version and a report explaining the compromise. Assuming that the compromise is passed by both houses without change, the legislation will be presented to the president.

The president may sign the bill, in which case it becomes law. Alternatively, he can veto the bill, in which case the bill will become law only if two-thirds of both houses vote to override the veto. The president also may do nothing, in which case the bill will become law without signature, unless Congress has adjourned. If Congress has adjourned, then the bill does not become law through presidential inaction. At the time they sign legislation, presidents sometimes offer comments, known as signing statements, on their interpretation of the legislation.

2. THE ADMINISTRATIVE PROCESS

The executive branch is headed by an elected president and is composed of various agencies responsible to the president, such as the Department of State, the Department of Justice, and the Department of Defense. The Constitution empowers the executive branch to administer and enforce the statutes enacted by Congress.

As the world has become more complex and the function of government more expansive, Congress has increasingly enacted statutes that establish only very general principles of law and has delegated to various agencies the authority to adopt more specific regulations consistent with the statutes. These administrative regulations define the terms of the statutes and describe how they apply to particular types of situations. The rationale is that Congress does not have the resources, such as the time and expertise, to write detailed legislation.

Among the agencies of the federal government are a number of so-called independent agencies, which are created by statute and whose members are appointed by the president. Examples include the Federal Communications Commission, the Securities and Exchange Commission, and the Federal Trade Commission. These agencies are considered independent because their members are generally appointed for a fixed term and, unlike the heads of the executive branch agencies, cannot be removed at the discretion of the president.

Federal regulations are typically adopted through a notice and comment process. A proposed regulation is published in the Federal Register, and all interested persons are provided a period of time within which to submit written comments. At the end of the period, the agency may adopt the regulation, although it must respond to the comments submitted. Federal regulations may be voided by a court if they are contrary to legislation or if they are “arbitrary and capricious.”

Administrative agencies often have the authority not only to issue administrative regulations but also to enforce those regulations through procedures that resemble the judicial process and, like judicial proceedings, result in case law.² The results of these proceedings are also subject to judicial review. Courts, however, generally hold that they will defer to the interpretation of a statute by the agency responsible for administering the statute, on the ground of the agency’s greater expertise.

B. Case Law

The federal judicial branch consists of the federal courts. The judges of the federal courts are appointed by the president, subject to the advice and consent of the Senate. To ensure their independence from the other branches, federal judges are appointed for life. State court judges in some cases are appointed by the governor and in other cases are elected.

The courts resolve disputes concerning the application of law to particular factual situations. In many instances, the law to be applied is enacted law. Courts, however, also have the authority to create law, known as common law, to decide disputes.

Under the English legal system, on which the American system is based, courts were empowered to create rules of law in order to decide the disputes brought before them. For example, originally, the law governing contracts and torts was not enacted by statute but was created by the courts. The law was called common law because it was common to the entire realm and was distinguished from local law.

Following the American Revolution, the individual states incorporated English common law into state law, either by a provision in the state constitution, by a statute known as a reception statute, or by judicial declaration. State courts deciding disputes thus apply the common law as well as statutory law. Under the doctrine of separation of powers, mentioned previously, a state legislature has the power to modify the common law of that state at any time. State courts may also modify the common law of their state. Thus, the common law continues to evolve, and its substance varies from state to state.

Congress did not enact the equivalent of a federal reception statute. It did, however, pass the Rules Decision Act, which provides that federal courts shall apply state law, except where the Constitution, treaties, or federal statutes otherwise require.³ Moreover, the Supreme Court held in 1938 in the famous case of Erie R.R. Co. v. Tompkins that the federal courts do not have the constitutional auth...