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  • Schauer, Frederick. Thinking Like A Lawyer

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    Luigi Lucheni
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    Schauer, Frederick. Thinking like a lawyer

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    dsadasds

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    15 views9 pages

    Schauer, Frederick. Thinking Like A Lawyer

    Uploaded by

    Luigi Lucheni
    dsadasds

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 9
    THINKING LIKE A LAWYER Frederick Schauer HARVARD UNIVERSITY PRESS mba, Mace Lando nd | | 10 30.1 The Base Distinction In most American states, the law instrues family court judges to make posted numeccal speed limit, cater than telling divers hat shey should simply dive prudently o eaefuly a es- senaby Te controversial whether courts should proceed as the Supreme CCoust did in Mironda, of ae the Coure dd in Roe v. Wade when it set foc che pesiseeimester approach to the resection thar states might peumisibly pace on the sight oft woman to an abortion. Foe some ci- tc, laying down derailed ules for legislature, anda cour cxcodsits suthotey and goes beyond the particlar competence ofa court when it Aloes things chat look legislative Ba thse seems od alent if as-410us.133 0979, 4 See Rober Fogo "The Formule Contato,” 64 Mich L Rew 165 (2945). Sev alo Alt Reed Ary, “The Sopreme Cour 199 Tem-—Rorewad: {Tae Docanen an the Dorin” 14 Pla Lev 26 2000). ww ‘we assume that other cours, policymakers, and ordinary people shold bepued by what the cours have dane” Ive think that courts ace only inthe business of malin decisions forthe partis, then perhaps it isnot so bad that others cannot be guided by those decsions. Bu especially for {he Supreme Court, which these days decides 80 fv cases, such a view of the Courts role seme as inefScien a it & uaealiic. There ate rules that are addresed to courts and purport to tall cours bow to decide ‘cite, and there ae roles that ae addressed co the citizens avd ofcals ‘wi wish simply to know what co do," and judicial opinions that resem Lethe ditctivs athe rele ond ofthe ule standardscontinsum are of ten quite plauibly focused on providing a source of guidance fo etizens tnd nonjudicial ofits alike. Eopecaly where a judicial opinion deals ‘wth conde chats repeated daily by numerous individuals ule re- Sion brings the vite of providing retsonable advice eo lage numbers ‘of people, and the advantages of doing so may often ourweigh he dsad- ‘vantages that come fom relingushing standaedike lexis” “Joining thove who crite courts when they sue eu drectives sce others who have argued that appellate cours should decide only “one eae aac often insiting that di is ha courts do bes oF that this iste only thing tht cours legitimately ought odo. Te qus- on of legitimacy roa be somewhat remote from issues about legal soning and the rules-standards coninoum, but not so forthe other ‘aensions ofthe argument for deciding one case at atine—for deciding 2 particular controversy nd not sting forth broad prescripons for de ‘ing others. And one argument for this approach sat making broad sumption cnsstnt with what psychologists refer to as availabiliyy™— the belie hat that which e moet cognitively accesible to us is epesea- {sive of some anger class of ets or events or cases. But oe the fet ‘which an appellate court saust focus ae not tall epreentasive, andr ‘harextent making broad coling inthe contex of concrete cases ay not bathe bes way to ay down broad principles of law? ‘Once again, there it no eight or wrong answer tothe question of wheter appellate cours should lay down broad rules inthe process of|

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