Chapter
III. The Possibility of Determinate Rules
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
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
C. DISTINGUISHING PRECEDENTS
D. SUMMARY: WHY PURELY ANALOGICAL DECISION MAKING DOES NOT EXIST
II. Reasoning from Legal Principles
A. THE NATURE OF LEGAL PRINCIPLES
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
D. SUMMARY: WHY JUDGES ARE POOR RULE MAKERS
II. Correctives to Judicial Rule Making
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
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
3. Levels of Generality of Rule Makers’ Intentions
CHAPTER VII Nonintentionalist Interpretation
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
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
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