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May 2 - June 25, 2022
It is important for you to know the protections available to you against harm to your person, your property, or your organization, and to be able to advocate for yourself in these regards.
Certainly so.
Law is a central tool and structure of the state. In Shakespeare’s Henry VI, Part 2, Dick the Butcher, in connection with plans for a revolt, says, “The first thing we do, let’s kill all the lawyers.” Dick sees the killing of lawyers as a way to destroy state authority (not, as is commonly thought, as a way to improve society more generally).
Great minds debate the points.
The important point here is the temporal one. Laws (and contracts) are prepared in advance to control later behavior.
The prohibition against ex post facto laws is important.
I must concede that I only learned most of what this book contains after law school.
Thus save your money.
human beings, more than we’d like to admit, reach conclusions first and analyze later.
Deciding by "gut feel" is an example, along with "groupthink".
the elements are generally linked conjunctively;
All elements must obtain; the series of elements are a AND b AND c, etc., if any one (or more) do not apply, then the requirements are not satisfied. It is as for true/false questions: if any part is false, the whole is false.
In a legal system, a legislator determines which elements are required, while a court determines whether each element is present.
Elegant and simply put! It's always the complex situations or emotional judgements that obs cure the clear determinations.
knowledge of facts and knowledge of law.
Jurors are "judges of the facts", and presiding judges are "judges of the law". Where there is no jury, the presiding judge is a judge of both fact and law.
ethical argument addresses the question of what should be, or what we should do, while legal argument generally addresses a wholly different question.
"Natural law" is a view that claims ethics shoukd be legislated.
even the appearance of bias is sufficient to result in a requirement that a judge recuse himself—withdraw—from hearing the case.
Except for the Supreme Court of the United States - these "Justices" are not constrained by law, rule, or regulation, only by their own choice.
one argument that has significant power is the argument that we should understand the text’s meaning as the parties originally understood it.
And with older texts, the meaning of words today may differ from the meaning when they were written.
The common core value here is to do what was intended; the argument is about how to infer intent.
Exactly the challenge.
The pragmatic Chinese adage, “same bed, different dreams,” is aptly applied to the making of contracts or law by multiple authors.
A charming aphorism.
Under this type of interpretation, for example, there would be no protection for abortion rights or same-sex relations and no limits on the right to bear arms.
And here we are in May 2022. The leaked opinion ignores entirely the Ninth Amendment.
there is some inconsistency between what is promised formally and what is said informally.
In a sales agreement such statements outside the contract are known as "puffery", or "puffing".
The default outcome is the outcome supplied by generally applicable law unless the contract provides otherwise.
A kind of "silence is consent" interpretation.
(lex specialis derogat legi generali):
anything the decision-maker said that is not part of the ratio decidendi is obiter dictum.
If it's not decision, it's chatter.
“You let me control the facts, I’ll let you control the law, and I will always win.”
The politicians control the facts by lying and thus the "fact" becomes the "truth" and the proposition of the professor follows.
This was one of the first instances where an advocate emphasized the law-in-action over the formalistic pronouncements of the law-in-the-books. The term “Brandeis brief” has come to refer to any use of policy-oriented extra-legal arguments in briefs.
Equality of rights does not require equality of results or outcomes.
Common law systems have long had a rule that secondary sources would not be accepted as evidence where primary sources are readily available.
Direct testimony is allowed while hearsay is not.
Abraham Lincoln, a great lawyer as well as a great President, was fond of asking, “If you call a tail a leg, how many legs does a dog have?” When his victim would innocently answer “five,” he would reply that the victim had it wrong: “Calling a tail a leg does not make it a leg.”
Lincoln was not only great, he was also greatly good.
the asserted predicate does not indicate the desired conclusion, but the speaker acts as though it does.
A failure of logic.
If you hear hoofbeats, think horses, not zebras.
The conclusion cannot exceed the facts.
three formal possibilities: inapplicability of the rule, an exception from the rule, and a conflicting rule that supervenes the first rule.
The logic of law hinges often on the consistent meaning of words.
the Supreme Court of the United States has found that a woman’s right to determine whether to have an abortion is a constitutionally-protected privacy right. (Some hope that this precedent will be overturned.)
We see in 2022 that the reactionary Court has, even prior to their Dobbs ruling, abrogated their own authority by allowing vigilante use of Texas state courts to sue and to punish anyone involving themselves in an abortion.
Justice Oliver Wendell Holmes famously said, “the mind, once expanded to the dimensions of larger ideas, never returns to its original size.”
A brilliant observation!
The ancient Chinese saying states, “faintest ink over sharpest memory.”
So true!
many legal systems make it a rule to decline to enforce certain types of oral agreements.
For example, the parol evidence rule and the statute of frauds.
Mark Twain put it, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”
Another brilliant aphorism.
