All posts tagged Thinking Like a Lawyer

9 CONSTITUTIONAL LAW Constitutional law is the law defining those legal relationships, such as powers, rights, duties, privileges, and immunities, created by a constitution. In other words, it is the law governing the application of the provisions of a constitution. As the term is commonly used by most American lawyers, . . . Read more

7 CONTRACTS The law of contracts defines those duties that individuals or organizations voluntarily assume, generally through promises. Contractual duties may arise in either of two general situations: under the doctrine of traditional contract or under the doctrine of detrimental reliance, also known as promissory estoppel.1 Contract law is generally . . . Read more

8 TORTS The law of torts defines certain duties that the law imposes upon persons in the absence of a contract. A tort is a violation of one of these duties. One who commits a tort is sometimes called a tortfeasor. I. THE NATURE OF TORT LAW No single principle . . . Read more

11 A HISTORICAL PERSPECTIVE ON LEGAL REASONING The premises underlying the process of legal reasoning in the United States reflect deeper assumptions about the relationship between individuals and the community, about the possibilities of human understanding, and about the nature of reality itself. That is, assumptions that govern the realms . . . Read more

10 CIVIL PROCEDURE Civil procedure is the law governing civil litigation in the courts. It prescribes the mechanisms by which parties obtain judicial determination of the rights and duties created by civil substantive law, such as contracts, torts, and constitutional law. Civil procedure has largely been codified. Congress, in Title . . . Read more

6 POLICY ANALYSIS, SYNTHESIS, AND APPLICATION This chapter develops a systematic understanding of the manner in which lawyers analyze, synthesize, and apply policies in the legal reasoning process. In the first section, the way in which a rule can be analyzed as a compromise among various pairs of conflicting policies . . . Read more

5 APPLYING THE LAW The final step in the legal reasoning process is to apply the law to the facts to determine the rights and duties of those involved in the situation. The law, as we have seen, consists of rules and the underlying policies. Application of the rules requires . . . Read more

12 CONTEMPORARY PERSPECTIVES ON LEGAL REASONING Contemporary mainstream legal reasoning has been the subject of extensive commentary and criticism by several schools of legal thought that have emerged since the 1960s. This chapter provides a very brief introduction to several of these schools. The reader is cautioned that schools of . . . Read more

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 . . . Read more

3 SYNTHESIZING THE LAW The third step in legal reasoning is to synthesize the rules of law into a single coherent framework that can be applied to the facts. This requires that the lawyer determine the relationship that each rule bears to the others. In addition, legal reasoning at times . . . Read more