Popular in Professional

Human Rights Law

Human Rights and Corruption: Problems and Potential of Individualising a Systemic Problem

Max Planck Institute Anne Peters

Law

A statistical approach to law school citation rankings

University of Virginia Joshua Fischman

Education

High school change

Boston College Andrew Hargreaves

Constitutional Law

What is constitutional ideology?

University of Oxford Nick Barber

Civil Procedure Law

Politics, Identity, and Class Certification on the U.S. Courts of Appeals

University of Pennsylvania Sean Farhang

Culture and Society

The City as a Growth Machine: Toward a Political Economy of Place

New York University Harvey Moltoch

Education

The Role of Education in Reducing Racial Inequality

University of Southern California Pedro A. Noguera

Where is the Law?

View more insights in Professional - Law - Socio-legal Studies

View more figures from University of Virginia

View the page of Charles L. Barzun

Read the Study

Next in Law

Human Rights and Corruption: Problems and Potential of Individualising a Systemic Problem

Anne Peters | Max Planck Institute

Court-Packing in Context

Barry Cushman | University of Notre Dame

What role do history and sociology play in understanding the law? Charles L. Barzun challenges viewers to consider whether these disciplines can truly be separated from the study of law and, if so, how.

Image courtesy of interviewee. October 24, 2024

Log-in or Sign-up to Faculti
Currently viewing this subject insight as a guest. You have insight(s) remaining for this month. Login to view 8000+ figures on the platform.

Generating Workspace...

Export as PDF

This video discusses the author's intentions behind writing a piece related to a forthcoming book about the American common law tradition. The work aims to uncover the underlying assumptions of legal education and how legal reasoning is approached in the U.S. compared to the U.K. It emphasizes the ambivalence within American legal education regarding the relevance of social, historical, and economic contexts in legal argumentation.

The author explores the traditional distinction in legal practice between "holding" (essential legal reasoning necessary for a decision) and "dicta" (non-essential commentary), arguing that the legal community often dismisses social context as irrelevant to legal arguments. However, they suggest that understanding these contexts can enrich legal reasoning and critique traditional views of legal authority, which often overlook the historical background of legal rules.

The author advocates for a more dynamic understanding of legal arguments that considers these broader implications, encouraging future legal scholars and practitioners to question established norms and explore the nature of legal reasoning over time. Ultimately, the piece serves as a preface to a book intended to delve deeper into these themes and the evolution of legal thought and practice.

Language:

Export as PDF

Export as PDF
Here are five key points from the video:

1. **Exploration of Common Law Tradition**: The author aims to examine the American common law tradition, highlighting its assumptions and distinctions compared to the United Kingdom, particularly concerning how legal reasoning and legal arguments are constructed and understood.

2. **Ambivalence in Legal Education**: There is a notable ambivalence within American legal education regarding the relevance of social, historical, and economic factors when it comes to legal arguments. While these factors are discussed, they are often dismissed as being outside the realm of acceptable legal reasoning, leading to a divide between legal theory and practical application.

3. **Distinction Between Holding and Dicta**: The video emphasizes the traditional legal distinction between "holding" (the necessary legal principle decided in a case) and "dicta" (remarks in judicial opinions that are not essential to the decision). This distinction illustrates the complexity and evolving nature of what constitutes relevant legal argumentation.

4. **Challenges of Including Broader Considerations**: The piece questions the longstanding practice of excluding broader sociopolitical and economic considerations from legal reasoning, suggesting that these factors may, in fact, have important implications for understanding the law, though they complicate legal arguments.

5. **Case-by-Case Adjudication**: The author argues for the significance of the case-by-case approach in developing law, noting that this method allows for better grasp of relevant facts and tailored reasoning, as opposed to relying solely on broad abstractions. Historical convideo and the origins of legal rules are important to consider, even as caution is urged against simplistic conclusions drawn from historical origins alone.

Export as PDF
Here are some key quotes extracted from the video you , which encapsulate the main ideas discussed:

1. "The purpose of it is to bring out some of the assumptions underlying how we think of law, at least in the United States."

2. "There are interesting distinctions between how the common law tradition has played out in the United States, as opposed to the United Kingdom."

3. "What the piece is really about is about the relevance or irrelevance of background, social, historical, economic, all sorts of different factors in the background of law and in general in legal education."

4. "There's an interesting kind of ambivalence that American legal education has with respect to those kinds of considerations."

5. "On the one hand, teachers often talk about them, on the other hand, there's always a sort of distinction made that well, those aren't legal arguments."

6. "Law has a long history of shutting off and bracketing certain kinds of considerations for a long time."

7. "The traditional distinction is between holding and dicta...everything else...is not necessary to the result."

8. "The distinction...is in a way, how...people read judicial opinions...people just pick and choose."

9. "The structure of reasoning is basically the same...A major premise, a minor premise, and a conclusion."

10. "Courts used to only be very vigorously concerned with that holding versus dicta."

11. "The idea of the common law tradition has been very much a notion that you case by case adjudication."

12. "The process matters...it is literally, it is technically relevant to how we think about the body of law that we have inherited."

These quotes reflect the nuances of legal education, the common law tradition, and the relevance of sociopolitical backgrounds in legal reasoning.

Export as PDF
Here are some articles and resources that are related to the themes, concepts, and ideas discussed in your video regarding legal reasoning, common law tradition, and the role of background factors in legal education:

1. **"The Common Law Tradition" by Oliver Wendell Holmes Jr.**
- This classic piece explores the historical development of the common law and critiques various assumptions about its function and purpose. Holmes emphasizes the importance of understanding law in its historical and social convideos.

2. **"Legal Reasoning: A Narrative Approach" by William Twining**
- Twining discusses the processes of legal reasoning, providing insights into how legal arguments are constructed and the importance of narrative in legal education and practice.

3. **"Law and the Social Sciences: Can't We All Just Get Along?" by John M. Conley and William M. O'Barr**
- This article examines the relationship between law and social science, arguing for the relevance of socio-historical convideos in legal arguments and their implications for legal education.

4. **"The Role of Empathy in Legal Reasoning" by Deborah L. Rhode**
- Rhode argues for the inclusion of broader social considerations in legal reasoning, reflecting on how empathy and understanding of societal backgrounds can influence legal judgments.

5. **"The Influence of Historical Convideo on Law" by David B. Kopel**
- Kopel discusses the significance of historical convideo in shaping legal rules and how understanding this convideo can inform present-day legal interpretation and application.

6. **"The Case Against Legal Formalism" by Brian Tamanaha**
- This article critiques the strict adherence to legal formalism and champions a more convideoual understanding of law that considers external factors, including social and historical influences.

7. **"Understanding the Law: A Sociological Perspective" by Keith Hawkins**
- Hawkins provides a sociological lens on the law, discussing how the legal system interacts with socio-political dynamics and the impact of these interactions on legal reasoning.

8. **"Legal Method and Reasoning" by Ian McLeod**
- McLeod’s work focuses on how legal arguments are crafted and dissected within common law jurisdictions, emphasizing the distinction between holding and dicta within legal opinions.

9. **"Justice and Legal Reasoning" by Ronald Dworkin**
- Dworkin articulates a philosophy of law that emphasizes principles of justice and morality, arguing for a deeper integration of ethical considerations in legal reasoning beyond strict positivism.

10. **"The Dynamics of Legal Change: Why Courts Should Consider Consequences" by Richard R. H. W. O’Reilly**
- This article posits that courts should evaluate the broader implications of their decisions and how ignoring such considerations can lead to detrimental outcomes in legal precedents.

These articles collectively examine various aspects of legal reasoning, the impact of historical and social convideos, and the ongoing discussion about the relevance of these factors in legal education and practice.

X-TIMESTAMP-MAP=LOCAL:00:00:00.000,MPEGTS:90000

1
00:00:00.000 --> 00:00:02.445
Wrote it actually originally thinking that I might add it,

2
00:00:02.445 --> 00:00:05.725
and I may still add it as a, as a kind of preface

3
00:00:05.725 --> 00:00:06.845
or introduction to a book.

4
00:00:06.945 --> 00:00:09.965
I'm working about the, the nature of the common law

5
00:00:09.965 --> 00:00:11.605
or the American common law tradition.

6
00:00:12.025 --> 00:00:14.845
Uh, and in a way, the purpose of it is to bring out some

7
00:00:14.845 --> 00:00:17.245
of the assumptions underlying how we think

8
00:00:17.245 --> 00:00:19.005
of law, at least in the United States.

9
00:00:19.065 --> 00:00:21.165
And there are interesting dis distinctions between

10
00:00:21.345 --> 00:00:24.325
how the common law tradition has played out in the

11
00:00:24.325 --> 00:00:26.485
United States, as opposed to the United Kingdom.

12
00:00:26.945 --> 00:00:30.005
Uh, but the, but the purpose I'm trying to show is some

13
00:00:30.005 --> 00:00:31.165
of the, the,

14
00:00:31.385 --> 00:00:33.725
or the, the purpose of the piece is to bring out some

15
00:00:33.725 --> 00:00:35.765
of the assumptions of legal education

16
00:00:35.905 --> 00:00:38.645
and how we think about legal argument and legal reasoning.

17
00:00:38.835 --> 00:00:41.605
What the piece is really about is about the relevance

18
00:00:41.605 --> 00:00:46.245
or irrelevance of background, social, historical,

19
00:00:46.845 --> 00:00:48.405
economic, all sorts of different,

20
00:00:48.405 --> 00:00:50.365
factors in the background of law

21
00:00:50.705 --> 00:00:52.525
and in general in legal education.

22
00:00:52.875 --> 00:00:55.285
There's an interesting kind of ambivalence

23
00:00:55.285 --> 00:00:58.725
that American legal education has with respect to those,

24
00:00:58.895 --> 00:01:00.525
those kinds of considerations.

25
00:01:00.905 --> 00:01:04.125
On the one hand, teachers often talk about them,

26
00:01:04.145 --> 00:01:06.125
and talk about fill in with historical context.

27
00:01:06.585 --> 00:01:08.765
On the other hand, there's always a, a, a sort

28
00:01:08.765 --> 00:01:10.085
of distinction made that well, though,

29
00:01:10.085 --> 00:01:11.445
but those aren't legal arguments.

30
00:01:11.625 --> 00:01:14.085
You don't wanna make that, that kind of argument to a court.

31
00:01:14.145 --> 00:01:16.125
You don't want to talk about the,

32
00:01:16.145 --> 00:01:18.325
the way some certain rules served a,

33
00:01:18.485 --> 00:01:19.845
a particular economic function

34
00:01:19.845 --> 00:01:23.085
or served some economic interest in the past in a kind

35
00:01:23.085 --> 00:01:24.565
of way that would undermine those rules.

36
00:01:24.875 --> 00:01:27.605
What they're interested in is how the rules apply

37
00:01:27.605 --> 00:01:29.525
to the particular case, and they're not interested in the

38
00:01:29.525 --> 00:01:33.325
past, allegedly, it's a kind of can of worms

39
00:01:33.325 --> 00:01:34.445
that they don't wanna open.

40
00:01:34.605 --> 00:01:35.565
I mean, there's a couple different

41
00:01:35.565 --> 00:01:36.685
ways of answering that question.

42
00:01:36.905 --> 00:01:38.165
One is, it just would strike,

43
00:01:38.185 --> 00:01:39.365
and this is one of the things that,

44
00:01:39.365 --> 00:01:41.005
motivated the piece is that I love talking

45
00:01:41.005 --> 00:01:42.725
to people about this and sort of asking them,

46
00:01:42.745 --> 00:01:44.725
and often you get a response that's just sort of, well,

47
00:01:44.755 --> 00:01:46.525
well, it's not a legal argument, right?

48
00:01:46.525 --> 00:01:48.965
When you, if you said that, well, that, that kind

49
00:01:48.965 --> 00:01:50.805
of rule was,

50
00:01:51.865 --> 00:01:55.325
was made at a particular time in service of white supremacy

51
00:01:55.425 --> 00:01:58.685
or, or, or to serve the, sort of,

52
00:01:58.865 --> 00:02:02.325
the commercial interests of the time, the, the, the,

53
00:02:02.325 --> 00:02:04.205
the kind of response is, well, that's, that's interesting,

54
00:02:04.205 --> 00:02:05.365
but that's not a legal argument.

55
00:02:05.365 --> 00:02:06.925
So that's one kind of thing is just, it's, it's a sort

56
00:02:06.925 --> 00:02:08.605
of brute disciplinary distinction.

57
00:02:08.785 --> 00:02:11.005
But of course, that's not particularly satisfying.

58
00:02:11.005 --> 00:02:12.045
And so you want to ask why.

59
00:02:12.405 --> 00:02:15.605
I think the main reason is law has a long history of,

60
00:02:15.825 --> 00:02:18.965
of shutting off and bracketing certain kinds

61
00:02:18.965 --> 00:02:20.405
of considerations for a long time.

62
00:02:21.345 --> 00:02:23.165
Uh, questions, for instance, about the consequences

63
00:02:23.165 --> 00:02:24.765
of a legal decision one way or the other.

64
00:02:24.765 --> 00:02:26.485
What will happen if we have a decision one way

65
00:02:26.485 --> 00:02:28.325
or the other, you know, that was thought of as a kind

66
00:02:28.325 --> 00:02:29.885
of policy consideration

67
00:02:29.995 --> 00:02:32.165
that is not strictly speaking legal reasoning and

68
00:02:32.165 --> 00:02:34.365
therefore has a, has has either no

69
00:02:34.425 --> 00:02:37.285
or a very minimal role to play in legal argumentation.

70
00:02:37.585 --> 00:02:39.085
And when I say legal argument, by the way,

71
00:02:39.085 --> 00:02:41.725
what I'm talking about is essentially the kinds of arguments

72
00:02:41.725 --> 00:02:44.965
that either judges would write in formulating an opinion

73
00:02:45.065 --> 00:02:46.805
or lawyers would present to courts.

74
00:02:47.465 --> 00:02:49.085
So on the one hand, there's this tradition

75
00:02:49.085 --> 00:02:50.485
of blocking these kinds of things out.

76
00:02:50.865 --> 00:02:54.365
But then also oftentimes the, the, the what, what isn't

77
00:02:54.395 --> 00:02:56.485
what is considered, appropriate

78
00:02:56.625 --> 00:02:59.005
or permissible legal argument changes over time. That's

79
00:02:59.140 --> 00:03:00.140
A wonderful question. And goes

80
00:03:00.140 --> 00:03:02.525
right to one of the mo one

81
00:03:02.525 --> 00:03:05.165
of the most traditional ways in which the court does this

82
00:03:05.165 --> 00:03:06.565
kind of cleaving off, right?

83
00:03:06.565 --> 00:03:09.605
So the traditional distinction is between it, in, in,

84
00:03:09.605 --> 00:03:11.805
in a judicial opinion, there is what's called a holding,

85
00:03:11.805 --> 00:03:12.925
and there's what's called dicta.

86
00:03:13.065 --> 00:03:15.965
And the idea is that the holding is only the, the part

87
00:03:15.965 --> 00:03:18.965
of the judicial opinion that is necessary

88
00:03:19.105 --> 00:03:20.565
for the result of the decision.

89
00:03:21.225 --> 00:03:24.085
So everything else, so the classic example is a kind

90
00:03:24.085 --> 00:03:27.085
of easy case is there's a famous case about the antitrust,

91
00:03:27.145 --> 00:03:30.085
exception for ba for major League baseball and the,

92
00:03:30.145 --> 00:03:31.445
and that it's the Supreme Court, I think,

93
00:03:31.445 --> 00:03:32.565
and now I'm, I'm sort of having

94
00:03:32.565 --> 00:03:33.805
trouble remembering exactly this case.

95
00:03:33.845 --> 00:03:36.565
I think it was the Supreme Court, goes up kind

96
00:03:36.565 --> 00:03:38.925
of digression about the history of baseball, right?

97
00:03:38.955 --> 00:03:40.805
That that doesn't, that's not neither here,

98
00:03:40.805 --> 00:03:42.285
nor that that's not necessary to the result

99
00:03:42.285 --> 00:03:43.645
of the opinion has nothing to do with it.

100
00:03:43.745 --> 00:03:46.365
What's much harder is when a court in kind

101
00:03:46.365 --> 00:03:49.125
of elaborating a series of reasons starts sort

102
00:03:49.125 --> 00:03:51.245
of speculating and talking broadly about the kinds

103
00:03:51.245 --> 00:03:54.805
of considerations that bear on a, on a general topic.

104
00:03:55.225 --> 00:03:57.605
But if one of those considerations didn't actually

105
00:03:58.495 --> 00:03:59.605
occur in this case, right?

106
00:03:59.605 --> 00:04:01.245
The party didn't demonstrate a,

107
00:04:01.425 --> 00:04:03.085
or didn't possess a particular feature

108
00:04:03.085 --> 00:04:04.325
that the court said is relevant.

109
00:04:04.785 --> 00:04:06.005
In theory, that's not relevant.

110
00:04:06.005 --> 00:04:07.205
The court was going beyond

111
00:04:07.235 --> 00:04:08.685
what was presented to it in the case.

112
00:04:08.705 --> 00:04:11.245
And, and it's just dicta, it's a thing said is,

113
00:04:11.245 --> 00:04:12.445
which is the, you know, it's from the Latin

114
00:04:12.705 --> 00:04:15.885
or a dictum is a, is this is the singular dicta is plural.

115
00:04:16.065 --> 00:04:17.365
So it's, it's a dictum,

116
00:04:17.435 --> 00:04:19.805
it's just a thing said it's not necessary to result.

117
00:04:19.835 --> 00:04:21.925
It's in a sense, it's not really law.

118
00:04:22.155 --> 00:04:24.485
That is, it's not, it's not part of the holding of the case,

119
00:04:24.485 --> 00:04:25.485
and therefore, subsequent,

120
00:04:25.655 --> 00:04:27.525
subsequent courts are not bound by them.

121
00:04:28.315 --> 00:04:30.735
Now, the interesting thing about the holding distinction,

122
00:04:30.755 --> 00:04:33.895
the dic, the, sorry, the holding dicta distinction,

123
00:04:34.085 --> 00:04:36.935
it's hard to get out, is in a way how,

124
00:04:37.315 --> 00:04:39.375
at least in my experience in legal education

125
00:04:39.375 --> 00:04:41.975
and in legal practice from people I talk to, and,

126
00:04:41.975 --> 00:04:44.215
and when my, when I was working for a judge clerking,

127
00:04:44.435 --> 00:04:46.815
it actually doesn't, it's not a line

128
00:04:46.815 --> 00:04:48.135
that is rigidly drawn anymore.

129
00:04:48.855 --> 00:04:50.055
Interestingly, in part because

130
00:04:50.075 --> 00:04:52.495
of the way people read judicial opinions.

131
00:04:52.495 --> 00:04:54.575
Now, there used to be, you used to read the whole opinion,

132
00:04:54.585 --> 00:04:57.095
you'd get out out of a book in a law court,

133
00:04:57.195 --> 00:04:59.295
but now, people just pick

134
00:04:59.355 --> 00:05:01.415
and choose that they, they search,

135
00:05:01.595 --> 00:05:03.215
we do word search on Westlaw

136
00:05:03.275 --> 00:05:07.295
or a a a, a tech, you know, a a a research tool to, and,

137
00:05:07.295 --> 00:05:09.455
and just pick out quotes from a case and all.

138
00:05:09.455 --> 00:05:11.015
If you can get a quote from a passport

139
00:05:11.275 --> 00:05:13.055
and have a citation for it, that's good enough.

140
00:05:13.275 --> 00:05:15.855
And it's, it's been sometimes a criti criticism level

141
00:05:15.915 --> 00:05:17.655
by older judges who say that, you know,

142
00:05:17.715 --> 00:05:19.095
clerks say they don't understand

143
00:05:19.095 --> 00:05:20.615
that you can't just pick out a quote.

144
00:05:20.615 --> 00:05:22.255
You gotta figure out where it comes from in the opinion.

145
00:05:22.675 --> 00:05:24.935
But that's be, that's been sort of receding in importance.

146
00:05:25.155 --> 00:05:26.495
So it's, for me, the reason I've mentioned

147
00:05:26.495 --> 00:05:29.055
that begin the article, that is, that's just, it's the kind

148
00:05:29.055 --> 00:05:31.215
of most traditional example of this effort

149
00:05:31.275 --> 00:05:32.655
to draw a distinction.

150
00:05:32.675 --> 00:05:33.735
Now, this is real law.

151
00:05:33.995 --> 00:05:36.495
Yes, it's all in a court opinion, but this is the real law.

152
00:05:36.495 --> 00:05:39.255
This is not real law. And there are a series of those kinds

153
00:05:39.255 --> 00:05:41.905
of distinctions that, that, that, you know, legal,

154
00:05:42.095 --> 00:05:43.665
that sort of judges, legal scholars

155
00:05:43.665 --> 00:05:45.865
and legal theorists have made this idea on the distinction

156
00:05:45.865 --> 00:05:47.945
on the one hand between the rules and in,

157
00:05:48.005 --> 00:05:50.825
and the application of the rules to a set of facts, which is

158
00:05:50.825 --> 00:05:52.505
that the classic and the classic legal reasoning,

159
00:05:52.505 --> 00:05:53.945
it's called a, a syllogism, right?

160
00:05:53.945 --> 00:05:55.745
You have a major premise, a general principle,

161
00:05:55.815 --> 00:05:58.775
classic one is, you know, all men are mortal,

162
00:05:58.835 --> 00:06:01.255
and you have the minor premise, which is the, the, the facts

163
00:06:01.255 --> 00:06:03.895
that you get from trial that's like Socrates is a man.

164
00:06:03.955 --> 00:06:06.015
And from that you deduce a conclusion, which is

165
00:06:06.015 --> 00:06:07.095
that Socrates is mortal.

166
00:06:07.165 --> 00:06:09.135
That is the structure of all legal reasoning.

167
00:06:09.435 --> 00:06:12.815
And it is in sense, internal in the sense that it is,

168
00:06:13.075 --> 00:06:15.575
it is, that is the kind of reason that courts recognize.

169
00:06:15.835 --> 00:06:17.095
Now, you can go beyond that.

170
00:06:17.315 --> 00:06:19.375
Not, not every, not every rule has

171
00:06:19.375 --> 00:06:21.055
to be a absolutely clear rule.

172
00:06:21.055 --> 00:06:22.775
There can be principles, right?

173
00:06:22.795 --> 00:06:24.735
Uh, principles of due process of law,

174
00:06:25.065 --> 00:06:26.495
equal protection of the laws.

175
00:06:26.665 --> 00:06:28.975
These might, might think of as principles. They are broader.

176
00:06:29.125 --> 00:06:32.615
They're less susceptible to like exacting application.

177
00:06:32.615 --> 00:06:33.815
There'll be more disputes about

178
00:06:33.815 --> 00:06:35.655
what is included within the principle or not.

179
00:06:35.955 --> 00:06:38.495
But the structure of reasoning is basically the same.

180
00:06:39.035 --> 00:06:41.615
And that is what we, what is often referred to as a kind

181
00:06:41.615 --> 00:06:43.295
of internal kind of reasoning,

182
00:06:43.295 --> 00:06:45.135
because it is the kind of thing courts do.

183
00:06:45.755 --> 00:06:47.695
And I guess one of the points of the,

184
00:06:47.695 --> 00:06:50.695
of the paper is just to show that, well, that's, you know,

185
00:06:50.875 --> 00:06:52.855
it was also the case that courts used

186
00:06:52.855 --> 00:06:54.815
to only be very vigorously concerned with

187
00:06:54.815 --> 00:06:55.975
that holding versus dicta.

188
00:06:55.995 --> 00:06:58.695
And it used to also be the case that courts, you know, did,

189
00:06:58.715 --> 00:07:01.495
bracketed all questions of consequences,

190
00:07:01.685 --> 00:07:03.135
whereas they include them now.

191
00:07:03.355 --> 00:07:04.815
So what I'm kind of opening the door

192
00:07:04.815 --> 00:07:07.415
to is why isn't it like, why couldn't courts,

193
00:07:07.555 --> 00:07:09.215
or is there good reason for courts not

194
00:07:09.215 --> 00:07:12.015
to take into these broader, what are sometimes treated

195
00:07:12.075 --> 00:07:13.735
as external considerations,

196
00:07:13.995 --> 00:07:16.535
the sociopolitical economic background in these cases?

197
00:07:16.755 --> 00:07:18.815
And it seems to me that there's good reason why you might,

198
00:07:18.825 --> 00:07:20.015
there are good reason to exclude them,

199
00:07:20.015 --> 00:07:21.575
and they're hard, they're difficult questions.

200
00:07:21.575 --> 00:07:22.695
That's why courts exclude them.

201
00:07:22.725 --> 00:07:24.815
They always want to exclude things that are hard

202
00:07:25.195 --> 00:07:27.575
and lend themselves to different kinds of arguments.

203
00:07:27.675 --> 00:07:29.855
And yet I think that it's, that that's there,

204
00:07:29.855 --> 00:07:32.215
there may be good reasons to include them as well, in a way.

205
00:07:32.255 --> 00:07:34.415
I don't, and I don't answer that in the dialogue.

206
00:07:34.415 --> 00:07:35.895
That's what my book is about. That's why it's the

207
00:07:35.895 --> 00:07:37.055
preface to the book, right?

208
00:07:37.115 --> 00:07:38.895
So that's what the, the book is about.

209
00:07:38.895 --> 00:07:40.735
But in a, in a way, I'll, I'll, I'll, I can,

210
00:07:40.815 --> 00:07:43.975
I can put it this way, which is the, the idea

211
00:07:43.995 --> 00:07:47.495
of the common law tradition has been very much a, a,

212
00:07:47.815 --> 00:07:49.775
a notion that you, that the case that

213
00:07:49.775 --> 00:07:53.895
that the law evolves over time through a, a, a, a process

214
00:07:54.035 --> 00:07:55.455
of case by case adjudication.

215
00:07:55.875 --> 00:07:57.535
And there is a kind of theory behind that.

216
00:07:57.535 --> 00:07:59.455
There, there is an idea that the reason why

217
00:07:59.455 --> 00:08:02.295
that's a good way to develop the law, to change the law to,

218
00:08:02.395 --> 00:08:05.055
as a substantive matter, we will get good, you know, in the,

219
00:08:05.055 --> 00:08:07.095
in the broad areas of law where this has been true.

220
00:08:07.145 --> 00:08:10.015
There are lots of them, but the classic ones are the private

221
00:08:10.675 --> 00:08:13.655
law, what's called private law, which is,

222
00:08:14.015 --> 00:08:15.975
contract law, tort law, which is civil liability,

223
00:08:15.975 --> 00:08:18.655
people suing each other for injuries and property law.

224
00:08:18.705 --> 00:08:21.975
Those are the classic, kind of common law, cases.

225
00:08:22.255 --> 00:08:24.615
Although in the United States, it's always also true

226
00:08:24.615 --> 00:08:27.615
of procedural law, like evidence law as well.

227
00:08:27.615 --> 00:08:28.615
They're now codified.

228
00:08:28.615 --> 00:08:30.535
But the develop, the way that law came to be, the way

229
00:08:30.535 --> 00:08:34.255
that we got the rules that that 95% of the, you know,

230
00:08:34.485 --> 00:08:35.895
jurisdictions in the United States

231
00:08:35.915 --> 00:08:39.295
and in England, the main body of that law came about

232
00:08:39.315 --> 00:08:42.095
as a result of this process of case by case adjudication.

233
00:08:42.095 --> 00:08:45.055
It wasn't primarily as a result of statutes being passed.

234
00:08:45.395 --> 00:08:47.815
And so then the question is why, why think that

235
00:08:47.815 --> 00:08:49.895
that process is a particularly good one?

236
00:08:50.395 --> 00:08:52.055
And there are answers to it. There are answers to,

237
00:08:52.425 --> 00:08:55.285
based on the kinds of, all sorts of different kinds

238
00:08:55.285 --> 00:08:57.325
of answers about the kind of reasoning

239
00:08:57.325 --> 00:08:58.645
that judges engage in, they're,

240
00:08:58.645 --> 00:09:00.085
they're constrained by particular facts.

241
00:09:00.085 --> 00:09:01.245
They're looking at particulars.

242
00:09:01.245 --> 00:09:03.005
You get, they get a better grip on the relevant

243
00:09:03.205 --> 00:09:05.885
considerations than trying to answer in broad abstractions,

244
00:09:05.885 --> 00:09:08.165
which is harder for the human mind to grab onto.

245
00:09:08.865 --> 00:09:10.845
In a way, it doesn't matter to me exactly

246
00:09:10.845 --> 00:09:13.885
what the answer is, but the point is the process matters.

247
00:09:14.385 --> 00:09:16.525
And these kinds in a way, what the kind of

248
00:09:16.525 --> 00:09:19.085
what sociological historical arguments that purport

249
00:09:19.085 --> 00:09:21.885
to undermine that le that historians

250
00:09:21.885 --> 00:09:24.085
and scholars have have written about the law,

251
00:09:24.085 --> 00:09:25.885
they often level it as a kind of critique.

252
00:09:25.905 --> 00:09:27.925
And they're saying, we should be suspicious of these rules.

253
00:09:27.925 --> 00:09:30.445
Because what was really going on in these cases was

254
00:09:30.445 --> 00:09:32.365
that it was serving some interest.

255
00:09:32.515 --> 00:09:34.725
That was not what it purported to be, right?

256
00:09:34.785 --> 00:09:36.525
It was actually white supremacy.

257
00:09:36.545 --> 00:09:39.445
It was actually, a commercial interest.

258
00:09:39.545 --> 00:09:40.805
It was actually, you know,

259
00:09:40.845 --> 00:09:42.365
I mean the extreme version of this, right?

260
00:09:42.365 --> 00:09:44.965
The extreme version would be that a judge was bribed, right?

261
00:09:45.305 --> 00:09:47.525
And so the, so, but these are sort of, there, these are sort

262
00:09:47.525 --> 00:09:49.045
of weaker versions of that right there.

263
00:09:49.265 --> 00:09:52.165
The idea is that their judgments were distorted in various

264
00:09:52.195 --> 00:09:54.245
ways, and that's a reason not

265
00:09:54.245 --> 00:09:56.965
to trust the process in a particular case, right?

266
00:09:56.985 --> 00:09:58.885
It seems to me that in this sense, it is literally,

267
00:09:58.885 --> 00:10:02.085
it is technically relevant to how we think about the body

268
00:10:02.085 --> 00:10:04.045
of law that we have inherited and that we defer to

269
00:10:04.045 --> 00:10:05.285
as a matter of authority over time,

270
00:10:05.755 --> 00:10:08.085
that we think something has gone wrong in the process.

271
00:10:08.505 --> 00:10:11.085
And as what I, the argument that I make in my book is

272
00:10:11.085 --> 00:10:13.205
that these kinds of arguments can be understood

273
00:10:13.225 --> 00:10:16.765
as arguments about, essentially about the legal process over

274
00:10:16.835 --> 00:10:18.605
time in a kind of broad scale.

275
00:10:18.905 --> 00:10:21.045
And so that's why they're in a, in a literal sense,

276
00:10:21.045 --> 00:10:22.205
they're relevant to me

277
00:10:22.385 --> 00:10:24.565
to assessing the, the value of the rule.

278
00:10:24.565 --> 00:10:26.605
They're not sufficient to, despite, it doesn't mean

279
00:10:26.605 --> 00:10:28.445
that if you point to some historical facts,

280
00:10:28.445 --> 00:10:29.525
that means the rule is bad.

281
00:10:29.755 --> 00:10:32.285
That would be a kind of crude, example

282
00:10:32.305 --> 00:10:34.565
of what's called the genetic fallacy, which is assuming

283
00:10:34.565 --> 00:10:37.485
that the origin of something means that it's bad.

284
00:10:37.545 --> 00:10:38.965
That's not, that's not,

285
00:10:39.505 --> 00:10:41.765
that's not valid, but it bears on it.

286
00:10:41.795 --> 00:10:43.685
It's relevant, it's something you might wanna know.

287
00:10:43.905 --> 00:10:45.885
It seems to me, I've been thinking mostly in terms

288
00:10:46.125 --> 00:10:48.925
of from the professor's profess perspective, but,

289
00:10:49.225 --> 00:10:52.205
but it's a good, I think the, the, I guess in a way,

290
00:10:52.265 --> 00:10:56.125
the thing that I want most to, to encourage students to do,

291
00:10:56.145 --> 00:10:57.725
and it's interesting, I'll be talking later today

292
00:10:57.725 --> 00:10:59.925
to some students here at Stanford,

293
00:10:59.925 --> 00:11:01.805
about themes very much related to this.

294
00:11:01.805 --> 00:11:04.085
So I'll have an exam, I'll have an opportunity to, to talk

295
00:11:04.085 --> 00:11:05.205
to them about this directly,

296
00:11:05.505 --> 00:11:07.645
but it's to press on these questions is to not,

297
00:11:07.905 --> 00:11:11.085
to not accept too passively the distinction of, well,

298
00:11:11.085 --> 00:11:13.205
that's not what courts do, that's not a legal argument.

299
00:11:13.975 --> 00:11:16.555
Why? What is a legal argument changes over time in

300
00:11:16.755 --> 00:11:17.795
response to different kinds of things?

301
00:11:17.795 --> 00:11:21.035
And that, that the, the, the, the discipline of law improves

302
00:11:21.035 --> 00:11:22.395
and develops over time as a result

303
00:11:22.395 --> 00:11:24.195
of people asking questions about that.

304
00:11:24.215 --> 00:11:26.275
So that's what I'm trying to do, you know, in a sense.

Exploring Assumptions in American Common Law

00:00:00 - Wrote it actually originally thinking that I might add it, and I may still add it as a, as a kind of preface or introduction to a book. I'm working about the, the nature of the common law or the American common law tradition. and in a way, the purpose of it is to bring out some of the assumptions underlying how we think of law, at least in the United States. And there are interesting dis distinctions between how the common law tradition has played out in the United States, as opposed to the United Kingdom. but the, but the purpose I'm trying to show is some of the, the, or the, the purpose of the piece is to bring out some

00:00:35 - and how we think about legal argument and legal reasoning. What the piece is really about is about the relevance or irrelevance of background, social, historical, economic, all sorts of different, factors in the background of law and in general in legal education. There's an interesting kind of ambivalence that American legal education has with respect to those, those kinds of considerations. On the one hand, teachers often talk about them,

00:01:06 - On the other hand, there's always a, a, a sort of distinction made that well, though, but those aren't legal arguments. You don't wanna make that, that kind of argument to a court. You don't want to talk about the, the way some certain rules served a, a particular economic function or served some economic interest in the past in a kind of way that would undermine those rules. What they're interested in is how the rules apply to the particular case, and they're not interested in the past, allegedly, it's a kind of can of worms that they don't wanna open.

Examining Legal Arguments: Beyond Traditional Boundaries

00:01:35 - ways of answering that question. One is, it just would strike, and this is one of the things that, motivated the piece is that I love talking to people about this and sort of asking them, and often you get a response that's just sort of, well, well, it's not a legal argument, right? When you, if you said that, well, that, that kind of rule was, was made at a particular time in service of white supremacy or, or, or to serve the, sort of, the commercial interests of the time, the, the, the, the kind of response is, well, that's, that's interesting, but that's not a legal argument.

00:02:06 - of brute disciplinary distinction. But of course, that's not particularly satisfying. And so you want to ask why. I think the main reason is law has a long history of, of shutting off and bracketing certain kinds of considerations for a long time. questions, for instance, about the consequences of a legal decision one way or the other. What will happen if we have a decision one way or the other, you know, that was thought of as a kind of policy consideration that is not strictly speaking legal reasoning and therefore has a, has has either no or a very minimal role to play in legal argumentation.

00:02:39 - what I'm talking about is essentially the kinds of arguments that either judges would write in formulating an opinion or lawyers would present to courts. So on the one hand, there's this tradition of blocking these kinds of things out. But then also oftentimes the, the, the what, what isn't what is considered, appropriate or permissible legal argument changes over time. That's A wonderful question. And goes right to one of the mo one of the most traditional ways in which the court does this kind of cleaving off, right? So the traditional distinction is between it, in, in,

Distinguishing Between Legal Holding and Dicta

00:03:11 - and there's what's called dicta. And the idea is that the holding is only the, the part of the judicial opinion that is necessary for the result of the decision. So everything else, so the classic example is a kind of easy case is there's a famous case about the antitrust, exception for ba for major League baseball and the, and that it's the Supreme Court, I think, and now I'm, I'm sort of having trouble remembering exactly this case. I think it was the Supreme Court, goes up kind of digression about the history of baseball, right? That that doesn't, that's not neither here,

00:03:42 - of the opinion has nothing to do with it. What's much harder is when a court in kind of elaborating a series of reasons starts sort of speculating and talking broadly about the kinds of considerations that bear on a, on a general topic. But if one of those considerations didn't actually occur in this case, right? The party didn't demonstrate a, or didn't possess a particular feature that the court said is relevant. In theory, that's not relevant. The court was going beyond what was presented to it in the case. And, and it's just dicta, it's a thing said is,

00:04:12 - or a dictum is a, is this is the singular dicta is plural. So it's, it's a dictum, it's just a thing said it's not necessary to result. It's in a sense, it's not really law. That is, it's not, it's not part of the holding of the case, and therefore, subsequent, subsequent courts are not bound by them. Now, the interesting thing about the holding distinction, the dic, the, sorry, the holding dicta distinction, it's hard to get out, is in a way how, at least in my experience in legal education and in legal practice from people I talk to, and,

The Evolution of Legal Opinions and Reasoning

00:04:44 - it actually doesn't, it's not a line that is rigidly drawn anymore. Interestingly, in part because of the way people read judicial opinions. Now, there used to be, you used to read the whole opinion, you'd get out out of a book in a law court, but now, people just pick and choose that they, they search, we do word search on Westlaw or a a a, a tech, you know, a a a research tool to, and, and just pick out quotes from a case and all. If you can get a quote from a passport and have a citation for it, that's good enough.

00:05:15 - by older judges who say that, you know, clerks say they don't understand that you can't just pick out a quote. You gotta figure out where it comes from in the opinion. But that's be, that's been sort of receding in importance. So it's, for me, the reason I've mentioned that begin the article, that is, that's just, it's the kind of most traditional example of this effort to draw a distinction. Now, this is real law. Yes, it's all in a court opinion, but this is the real law. This is not real law. And there are a series of those kinds of distinctions that, that, that, you know, legal, that sort of judges, legal scholars

00:05:45 - on the one hand between the rules and in, and the application of the rules to a set of facts, which is that the classic and the classic legal reasoning, it's called a, a syllogism, right? You have a major premise, a general principle, classic one is, you know, all men are mortal, and you have the minor premise, which is the, the, the facts that you get from trial that's like Socrates is a man. And from that you deduce a conclusion, which is that Socrates is mortal. That is the structure of all legal reasoning. And it is in sense, internal in the sense that it is, it is, that is the kind of reason that courts recognize.

Principles and Reasoning in Common Law

00:06:17 - Not, not every, not every rule has to be a absolutely clear rule. There can be principles, right? principles of due process of law, equal protection of the laws. These might, might think of as principles. They are broader. They're less susceptible to like exacting application. There'll be more disputes about what is included within the principle or not. But the structure of reasoning is basically the same. And that is what we, what is often referred to as a kind of internal kind of reasoning, because it is the kind of thing courts do. And I guess one of the points of the,

00:06:50 - it was also the case that courts used to only be very vigorously concerned with that holding versus dicta. And it used to also be the case that courts, you know, did, bracketed all questions of consequences, whereas they include them now. So what I'm kind of opening the door to is why isn't it like, why couldn't courts, or is there good reason for courts not to take into these broader, what are sometimes treated as external considerations, the sociopolitical economic background in these cases? And it seems to me that there's good reason why you might,

00:07:20 - and they're hard, they're difficult questions. That's why courts exclude them. They always want to exclude things that are hard and lend themselves to different kinds of arguments. And yet I think that it's, that that's there, there may be good reasons to include them as well, in a way. I don't, and I don't answer that in the dialogue. That's what my book is about. That's why it's the preface to the book, right? So that's what the, the book is about. But in a, in a way, I'll, I'll, I'll, I can, I can put it this way, which is the, the idea of the common law tradition has been very much a, a, a notion that you, that the case that

Case-by-Case Adjudication: The Foundation of Common Law

00:07:54 - of case by case adjudication. And there is a kind of theory behind that. There, there is an idea that the reason why that's a good way to develop the law, to change the law to, as a substantive matter, we will get good, you know, in the, in the broad areas of law where this has been true. There are lots of them, but the classic ones are the private law, what's called private law, which is, contract law, tort law, which is civil liability, people suing each other for injuries and property law. Those are the classic, kind of common law, cases.

00:08:24 - of procedural law, like evidence law as well. They're now codified. But the develop, the way that law came to be, the way that we got the rules that that 95% of the, you know, jurisdictions in the United States and in England, the main body of that law came about as a result of this process of case by case adjudication. It wasn't primarily as a result of statutes being passed. And so then the question is why, why think that that process is a particularly good one? And there are answers to it. There are answers to,

00:08:55 - of answers about the kind of reasoning that judges engage in, they're, they're constrained by particular facts. They're looking at particulars. You get, they get a better grip on the relevant considerations than trying to answer in broad abstractions, which is harder for the human mind to grab onto. In a way, it doesn't matter to me exactly what the answer is, but the point is the process matters. And these kinds in a way, what the kind of what sociological historical arguments that purport to undermine that le that historians and scholars have have written about the law,

Critical Examination of Legal Rules and Historical Context

00:09:25 - And they're saying, we should be suspicious of these rules. Because what was really going on in these cases was that it was serving some interest. That was not what it purported to be, right? It was actually white supremacy. It was actually, a commercial interest. It was actually, you know, I mean the extreme version of this, right? The extreme version would be that a judge was bribed, right? And so the, so, but these are sort of, there, these are sort of weaker versions of that right there. The idea is that their judgments were distorted in various ways, and that's a reason not

00:09:56 - It seems to me that in this sense, it is literally, it is technically relevant to how we think about the body of law that we have inherited and that we defer to as a matter of authority over time, that we think something has gone wrong in the process. And as what I, the argument that I make in my book is that these kinds of arguments can be understood as arguments about, essentially about the legal process over time in a kind of broad scale. And so that's why they're in a, in a literal sense, they're relevant to me to assessing the, the value of the rule.

00:10:26 - that if you point to some historical facts, that means the rule is bad. That would be a kind of crude, example of what's called the genetic fallacy, which is assuming that the origin of something means that it's bad. That's not, that's not, that's not valid, but it bears on it. It's relevant, it's something you might wanna know. It seems to me, I've been thinking mostly in terms of from the professor's profess perspective, but, but it's a good, I think the, the, I guess in a way, the thing that I want most to, to encourage students to do,

Challenging Legal Boundaries: The Evolution of Legal Arguments

00:11:24 - to some students here at Stanford, about themes very much related to this. So I'll have an exam, I'll have an opportunity to, to talk to them about this directly, but it's to press on these questions is to not, to not accept too passively the distinction of, well, that's not what courts do, that's not a legal argument. Why? What is a legal argument changes over time in response to different kinds of things? And that, that the, the, the, the discipline of law improves and develops over time as a result of people asking questions about that. So that's what I'm trying to do, you know, in a sense.

Faculti AI can make mistakes

Faculti

Popular in Professional

Human Rights and Corruption: Problems and Potential of Individualising a Systemic Problem

A statistical approach to law school citation rankings

High school change

What is constitutional ideology?

Politics, Identity, and Class Certification on the U.S. Courts of Appeals

The City as a Growth Machine: Toward a Political Economy of Place

The Role of Education in Reducing Racial Inequality

Where is the Law?

Next in Law

Guide

Platform and Category Pages

Contact Us

FAQs

What is Faculti?

How do you select interviews?

Interview Process

Page Structure

Popular in Professional

Guide

Platform and Category Pages

Contact Us

FAQs

What is Faculti?

How do you select interviews?

Interview Process

Accessibility Options

Contrast Adjustment

Text Size Adjustment

Text Spacing Adjustment

Line Height Adjustment

Cursor Size Adjustment

Page Structure Options

Page Structure