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Contents

Introduction

PART ONE: Law and Its Function

CHAPTER I: Settling Moral Controversy

I. Settlement

II. The Dilemma of Rules

III. The Possibility of Determinate Rules

IV. The Nature of Law

PART TWO: Common-Law Reasoning: Deciding Cases When Prior Judicial Decisions Determine the Law

CHAPTER II: Ordinary Reason Applied to Law Natural Reasoning and Deduction from Rules

I. The Natural Model of Common-Law Reasoning

II. The Rule Model of Common-Law Reasoning

III. Comparing the Models

IV. A Closer Look at the Rule Model: Implications and Puzzles

A. PROMULGATION OF RULES

B. IDENTIFICATION OF PRECEDENT RULES

C. THE PERSISTENCE OF PRECEDENT RULES

CHAPTER III: The Mystification of Common-Law Reasoning

I. Analogical Reasoning from Case to Case

A. CONSTRAINT BY SIMILARITY

B. A FORTIORI CONSTRAINT

C. DISTINGUISHING PRECEDENTS

D. SUMMARY: WHY PURELY ANALOGICAL DECISION MAKING DOES NOT EXIST

II. Reasoning from Legal Principles

A. THE NATURE OF LEGAL PRINCIPLES

B. FAULTY LOGIC

C. PERNICIOUS EFFECTS

D. THE FAILURE OF PROPOSED JUSTIFICATIONS FOR LEGAL PRINCIPLES

E. SUMMARY: WHY LEGAL PRINCIPLES DO NOT AND SHOULD NOT HAVE A ROLE IN JUDICIAL DECISION MAKING

CHAPTER IV: Common-Law Practice

I. Judges as Rule Makers

A. INATTENTION

B. COGNITIVE BIAS

C. OVERRULING PROBLEMS

D. SUMMARY: WHY JUDGES ARE POOR RULE MAKERS

II. Correctives to Judicial Rule Making

A. THE METHOD OF ANALOGY

B. RESTRICTIONS ON THE SCOPE OF PRECEDENT RULES

C. DISTINGUISHING AND OVERRULING

D. SUMMARY: CORRECTIVE PRACTICES

III. Rationality and Sustainability of Judicial Practice

PART THREE: Reasoning from Canonical Legal Texts

CHAPTER V: Interpreting Statutes and Other Posited Rules

I. The Goal of Legal Interpretation: The Lawmaker’s Intended Meaning

II. What Is the State of Mind That Constitutes the Lawmaker’s Intended Meaning?

III. Some Challenges to the Determinacy of Intended Meanings

A. THE MULTIPLICITY OF THE RULE MAKER ’ S INTENTIONS

B. LEVELS OF GENERALITY OF INTENTIONS

C. “TRANSLATING” THE RULE MAKER' S RULE IN LIGHT OF HIS MISTAKES

D. THE DETERMINACY OF INTENDED MEANING : THE “KRIPKENSTEIN” CRITIQUE

IV. Conclusion

CHAPTER VI: Infelicities of the Intended Meaning of Canonical Texts and Norms Constraining Interpretation

I. Absurd, Unjust, and Pointless Intended Meanings

II. Opaque Intended Meanings

III. Conflicting Multiple Intended Meanings

IV. Norms Constraining Intended Meanings as Antidotes to the Foregoing Infelicities

A. SUBSTANTIVE CONSTRAINTS

1. Norms for Avoiding Substantively Infelicitous Results

2. Norms for Effectuating Specific Policies

B. PROCEDURAL CONSTRAINTS

1. Norms of Form

2. Norms for Failed Law

3. Levels of Generality of Rule Makers’ Intentions

CHAPTER VII Nonintentionalist Interpretation

I. Textualism

A. THE IMPOSSIBILITY OF PURE (INTENTION-FREE) TEXTUALISM

1. Argument One: Texts Cannot Declare the Language in Which They Are Written

2. Argument Two: Texts Cannot Declare That They Are Texts

3. Argument Three: Meaning Cannot Be Autonomous from Intent – One Must Always Identify an Author

4. Argument Four: Texts Can Have “Deviant” Meanings Because Those Meanings Are Intended

B. IMPURE TEXTUALISM AND THE CONSTRUCTION OF RULES BY “INTERPRETERS”

1. The Algorithmic Textualist

2. Four Nonalgorithmic Textualisms

II. Dynamic Interpretation of Canonical Legal Rules

III. Other Nonstarters

A. ORIGINAL PUBLIC MEANING

B. CONCEPTS, NATURAL KINDS, AND UNDERLYING PURPOSES (SPIKE LEE)

CHAPTER VIII: Is Constitutional Interpretation Different? Why It Isn’t and Is

I. The Constitution as Super Statute

II. Two Opposing Views

A. THE “DEAD HAND OF THE PAST” CRITICISM AND THE NOTION OF THE “LIVING CONSTITUTION”

B. THE “PARADIGM CASE” METHODOLOGY OF INTERPRETATION

III. Supreme Court Precedents and Constitutional Interpretation

IV. Changes in the Rule of Recognition and the Identity of the Constitution’s Authors

Epilogue: All or Nothing

Selected Bibliography

Index