Thinking Like a Lawyer: An Introduction to Legal Reasoning

349 Pages·2010·1.38 MB·English

by  Kenneth J. Vandevelde

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“Contains the best introduction to
Praise for the First Edition of Thinking Like a Lawyer N
legal reasoning that I know of.”
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“A comprehensive overview of the standard techniques of legal reasoning.
E —Duncan Kennedy, Harvard Law School
It stands out because of the way it enriches the basic discussion with perspectives
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from legal history and theory.” —Joan Williams, UC Hastings College of the Law E
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“Vandevelde restores luster to the phrase ‘thinking like a lawyer.’ Everyone, whether D
a newly entering law student or an experienced practitioner, will take away from E
Thinking Like a Lawyer valuable insights about law and lawyering in the United States.”
—Christopher G. Wren and Jill Robinson Wren, coauthors, The Legal Research Manual T
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“The fi rst post-realist look at legal reasoning which manages at one and the same time to
T H I N K I N G
take legal reasoning seriously and yet not be taken in by it. Written in a lively and engaging
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style, this book is both comprehensive in its treatment of the subject and provocative in N
its central argument, namely that thinking like a lawyer means making judgments about
policies. . . . Thinking Like a Lawyer is a real achievement.” —Austin Sarat, Amherst College K
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Law students, law professors, and lawyers frequently refer to the process of G
“thinking like a lawyer,” but attempts to analyze in any systematic way what is meant

by that phrase are rare. In this practical and accessible introduction, Kenneth
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L AW Y E R
J. Vandevelde defi nes this elusive phrase and clearly identifi es the techniques
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involved in thinking like a lawyer.
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When Vandevelde’s Thinking Like a Lawyer was fi rst published, it became an E
instant classic, considered by many to be the gold standard introduction to legal

reasoning. The second edition offers a new generation of students, lawyers, and A AN INTRODUCTION TO LEGAL REASONING
lay readers important insight into a well-developed and valuable way of thinking.

Updated throughout, this edition features a new chapter on contemporary
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perspectives on legal reasoning, as well as new sections on the legislative process,
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the judicial process, and the role of cognitive bias in jury deliberations.
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Kenneth J. Vandevelde is professor of law and former dean at Thomas Jefferson
School of Law in San Diego. A graduate of Harvard Law School, he has practiced Y
KENNETH J. VANDEVELDE
law before U.S. courts and international tribunals. He is the author of four books
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and numerous articles on U.S. and international law.
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COVER DESIGN: MIGUEL SANTANA & WENDY HALITZER SSeeccoonndd EEddiittiioonn
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Thinking Like a Lawyer
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T H I N K I N G L I K E
A L AW Y E R
An Introduction to Legal Reasoning
SECOND EDITION
Kenneth J. Vandevelde
Thomas Jefferson School of Law
A Member of the Perseus Books Group
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Published by Westview Press,
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Designed by Timm Bryson
Library of Congress Cataloging-in-Publication Data
Vandevelde, Kenneth J.
Thinking like a lawyer : an introduction to legal reasoning / Kenneth J.
Vandevelde.—2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-8133-4464-5 (alk. paper)
1. Law—Methodology. 2. Law—Interpretation and construction. I. Title.
K212.V36 2010
340'.11—dc22
2010034664
10 9 8 7 6 5 4 3 2 1
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For Lidia, Jenny, and Shelly
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contents
Acknowledgments, xv
introduction, 
I. How Lawyers Think, 1
II. The Plan of This Book, 4
III. Thinking Like a Law Student, 6
PART ONE
BASIC LEGAL REASONING
. identifying applicable law, 
I. The Sources of American Law, 10
A. Enacted Law, 11
1. The Legislative Process, 12
2. The Administrative Process, 14
B. Case Law, 15
1. The District Court, 16
a. Bringing a Dispute Before the Court, 16
b. Identifying Issues, 20
vii
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viii Contents
c. Deciding Issues, 21
d. Distinguishing Between Issues of Law and Fact, 24
2. The Court of Appeals, 25
3. The Supreme Court, 27
II. Identifying Applicable Law, 28
A. Identifying the Government with Power:
An Introduction to Choice of Law Theory, 28
1. Vertical Choice of Law Analysis, 29
2. Horizontal Choice of Law Analysis, 29
B. Identifying Law by Subject Matter:
An Introduction to Rule Analysis, 31
1. The Nature of Rules: Form, 31
2. The Nature of Rules: Substance, 32
3. The Problem of Generality, 33
C. Identifying Void Rules: An Introduction
to Constitutionalism, 34
. analyzing the law, 
I. Analyzing Statutes, 37
II. Analyzing Cases, 40
A. The Components of a Case, 40
1. Facts, 40
2. Procedural History, 40
3. Questions Presented, 41
4. Rules of Law, 41
5. Application of Law to Fact, 42
6. Holding, 45
7. Disposition, 47
8. Dissents and Concurrences, 47
B. An Introduction to Stare Decisis, 50
III. Analyzing Rights and Duties, 53
A. The Meaning of Right and Duty, 53
B. Three Characteristics of Rights and Duties, 54
C. The Significance of the Three Characteristics, 55
. synthesizing the law, 
I. Synthesizing Rules: General to Specific, 57
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Contents ix
A. The Basic Organizing Principle, 58
B. Relationships Among Rules, 58
1. Rules Defining an Element of a More General Rule, 58
2. Rules Applying a More General Rule, 59
3. Rules Limiting a More General Rule, 60
4. Rules Cumulative to Another Rule, 62
5. Rules Contradicting Another Rule, 63
C. Outlining the Synthesis, 65
II. Synthesizing a Rule: Specific to General, 67
A. The Basic Model, 68
B. The Problem of Indeterminacy, 69
C. Addressing Indeterminacy Through Policy Judgments, 71
D. Using Rule Synthesis as an Advocate, 73
1. Supporting the New Rule, 73
2. Opposing the New Rule, 74
. researching the facts, 
I. The Role of Factual Research, 77
II. The Rules of Factual Investigation, 78
A. The Law of Evidence, 79
1. Types of Evidence Admissible, 79
2. The Requirement of Relevance, 80
3. Reasons to Exclude Relevant Evidence, 81
a. Unreliability: The Example of Hearsay, 81
b. Prejudice: The Example of Prior Bad Acts, 82
c. Other Policies: The Example of Privilege, 83
B. The Burden of Proof, 83
1. Types of Burdens of Proof, 84
2. Techniques to Persuade the Trier of Fact, 86
3. Presumptions, 87
C. The Problem of Cognitive Bias, 89
. applying the law, 
I. Deduction, 93
A. The Basic Model, 93
B. The Problem of Indeterminacy, 95
C. Addressing Indeterminacy Through Specificity, 96