Legal Reasoning Flashcards
1
Q
pluralistic model of law
A
- policy
- tradition
- precedent
- intent
- text
2
Q
types of legal arguments: characteristics
A
- different evidence to discern meaning
- different values
3
Q
definition of the 5 types in pluralistic model
A
- Text = what words of the law mean to a non-legally trained person
- Intent = what words of the law mean to the makers of that law
- Precedent = the rules made in court opinions
- Tradition = what the customs of people tell us about what the law means
- Policy = whether the interpretation of the law accords with the law’s purpose(s) (determined from one of the other types)
4
Q
policy: different levels of generality
A
- targeted social goals = safe water supply, traffic control, etc
- instrumental concerns = compensation, deterrence. etc.
- abstract values = equality, justice, etc.
5
Q
precedent
A
- ruling from case being used as a basis for other similar cases
- unwritten law
6
Q
legislative history can be used in ____ argument
A
intent
7
Q
is intent needed for judge-made law?
A
no
8
Q
cases can be similar in 2 ways
A
- facts
2. values
9
Q
cases that are not similar
A
distinguished case
10
Q
examples of similar cases (facts vs values)
A
Facts:
- minor can rescind contracts based on the law
Values:
- mentally disabled adults can rescind contracts because similar to minors, their mental capacity is not fully developed
11
Q
legislative history
A
process of bill becoming law that can be used in intent analysis
12
Q
text
A
- what the words mean to the average person on the streets
- only the legal text
- objectivity
13
Q
intent
A
- what the text meant to those who enacted it
- references about intent of those who created the text
- popular will
14
Q
precedent
A
- judicial opinions
- cases
- stability
15
Q
tradition
A
- community customs
- historical beliefs & behavior
- social cohesion
