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Washington Lawyer

Legal Spectator: Legal Reasoning: What Is It?

From Washington Lawyer, April 2002

By Jacob A. Stein

spectatorThe work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth. Let some intelligent layman ask him to explain: he will not go very far before taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft. -Benjamin N. Cardozo

The briber and the bribee are indicted and tried together. The bribee is acquitted and the briber is convicted. There is something wrong here. It is illogical. Nevertheless, the court affirms, citing cases that jury verdicts need not be logical, or explainable on any logical basis.

The method of reasoning that juries use to reach a verdict is not something that the law is interested in putting under a microscope, a telescope, or a colonoscope. The verdict represents the cumulative effect, great or small, of the evidence, the appearance of the witnesses, the lawyers (some say even the color of the clothes the lawyers wear is crucial), the stirring closing arguments employing striking phrases, romantic metaphors, biblical proverbs, frequent references to common sense, the court’s instruction, and the life experiences of each juror.

Is the verdict the product of something called jury reasoning? Is it different from the reasoning of judges and lawyers? Is there such a thing as legal reasoning?

Law schools choose not to confront the subject. The law schools I know of offer no course in legal reasoning. It is something that is best picked up along the way as a collateral benefit derived from reading cases and statutes. Law students and lawyers, when asked to give a definition of legal reasoning, respond with a long pause.

At one time I had a stack permit that gave me the right to roam at will the stacks of the Library of Congress law division. In my wanderings up and down the aisles, I noticed odd-looking books whose titles indicated that the author believed that legal reasoning was pure deductive logic. It was asserted that the elementary laws that control human relations are discoverable by the methods used in the natural sciences. This is the true path to the knowledge that unifies torts, contracts, and the criminal law. I was young at the time and I was drawn to such books because I, too, wanted legal reasoning elevated to that level. Each of these books was privately printed and always in the first edition.

Here is a typical quotation:

The system of pleading as worked out with such completeness by the common law, and accepted with but slight modification by modern codes, is at bottom no more than a plan by which an action at law is put upon a syllogistic basis. Each pleading in succession shifts the material of the syllogism until the fact in issue, be it a legal fact or a natural fact, is affirmed on one side and denied on the other. The final antithesis represents the premises of the syllogism which will determine the solution of the case.
     Common law pleading, with all its pretensions to formal logic and scientific certitude, was swept away with the enactment of the Federal Rules of Civil Procedure. Long before this Oliver Wendell Holmes Jr. had decided that formal logic, with its use of the major premise and the minor premise and the impressive ergo, has little to do with deciding real cases. Law, like everything else in life, is tentative. It does not deal in absolutes. Even if it did, it would cause a lot of trouble. Those who think they are absolutely correct are the kind of people who fight a war with others who think they are absolutely correct.

As far as Holmes was concerned, the legal process is not particularly good at getting at truth. Five to four is good enough. The law’s job is to settle real disputes as best it can, and the best way to do it often requires a dose of illogicality.

Albert W. Alschuler, a professor at the University of Chicago Law School, in a recent Holmes biography, says that Holmes injected a poisonous skepticism into American law. Holmes did not believe in a divinely imposed distinction between right and wrong. Alschuler declares that Holmes bears some of the blame for the present acceptance of relativity in all human conduct, a relativity that discourages discipline.

There is another recent book that describes Holmes’s philosophical views on legal reasoning. It is titled The Metaphysical Club by Louis Menand. Menand, although not a lawyer, writes concisely and clearly concerning Holmes and legal reasoning. The next time someone has the audacity to ask you to define legal reasoning, you might repeat Louis Menand’s definition:

Jurisprudential theories, like theories of literary criticism or historical methodologies, are generally categorized according to the element of their subjects they take to be essential. A legal theory that stresses the logical consistency of judicial opinions is called formalist; a theory that emphasizes their social consequences is called utilitarian; a theory that regards them as reflections of the circumstances in which they were written is called historicist. The problem with all such theories is that they single out one aspect of the law as the essential aspect. It was Holmes’s genius as a philosopher to see that the law has no essential aspect.

     Now back to the briber and the bribee. Was the jury verdict really all that bad? After the verdict a few of the jurors were interviewed. The evidence, as the case unfolded, made it clear that the briber used his position of power to extort the bribe. The verdict that appeared illogical, on reflection, had a respectable informal jury logic of its own. Holmes may have liked it.

Jacob A. Stein is a senior partner with Stein, Mitchell & Mezines LLP. He may be reached by e-mail at jstein@steinmitchell.com.