Thinking Like a Lawyer: An Introduction to Legal Reasoning

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Westview Press, 1996 - Law - 254 pages
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Students of the law are often told that they must learn to “think like a lawyer,” but they are given surprisingly little help in understanding just what this amounts to. Generally, they are expected to pick up this ability by example and perhaps by osmosis. But it remains the case that very few lawyers—even very good ones—are consciously aware of what it means to think like a lawyer.In this insightful and highly revealing book, Kenneth J. Vandevelde identifies, explains, and interprets the goals and methods of the well-trained lawyer. This is not a book about the content of the law; it is about a well-developed and valuable way of thinking that can be applied to many fields.Both practical and sophisticated, Thinking Like a Lawyer avoids the pitfalls common to most books on legal reasoning: It neither assumes too much legal knowledge nor condescends to its readers. Invaluable for law students and practicing lawyers, the book will also effectively interpret legal thinking for lay readers seeking a better understanding of the often mysterious ways of the legal profession.
  

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Contents

Identifying Applicable Law
8
Analyzing Statutes and Cases
26
Synthesizing the Law
40
Researching the Facts
58
Applying the Law
66
A Historical Perspective on Legal Reasoning
110
Policy Analysis Synthesis and Application
142
Contracts
184
Torts
196
Constitutional Law
210
Civil Procedure
224
Conclusion
236
Selected Bibliography
238
Index
244
Copyright

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Page 216 - The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards...
Page 121 - Jr., who over a century ago wrote that the life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than syllogism in determining the rules by which men should be governed.
Page 114 - This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied.
Page 114 - School, it was indispensable to establish at least two things : first, that law is a science ; secondly, that all the available materials of that science are contained in printed books.
Page 120 - This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody...
Page 35 - Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale LJ 16 (1913).
Page 114 - Moreover, the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number.
Page 25 - The general rule is perfectly well settled that, where a statute is of doubtful meaning and susceptible upon its face of two constructions, the court may look into prior and contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be remedied, the extraneous circumstances, and the purpose intended to be accomplished by it to determine its proper construction.
Page 114 - Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.
Page 218 - We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.

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About the author (1996)

Kenneth J. Vandevelde is dean and professor of law at Thomas Jefferson School of Law in San Diego. He is author of United States Investment Treaties: Policy and Practice and many papers, primarily on constitutional law and international law.

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