Unjust Legal Reasoning

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Unjust Legal Reasoning


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The Justice Series Part V Unjust Legal Reasoning:

T he Justice Series Part V Unjust Legal Reasoning The Advocacy Foundation, Inc. 1735 Market Street, Suite 3750 100 Edgewood Avenue, Suite 1690 Philadelphia, PA 19102 Atlanta, GA 30303 (878) 222-0100 Voice | Data | SMS www.TheAdvocacy.Foundation © The Advocacy Foundation, Inc. 2015 (All Rights Reserved)

Biblical Authority:

2 Biblical Authority Isaiah 10 Luke 18


3 Introduction What Legal Reasoning Is, and Why It Matters Legal reasoning is the way lawyers and judges talk publicly about the law. This legal language gives us the tools to tell the difference between impartial and partisan legal decisions. Legal reasoning also provides a language tool, which enables people of different beliefs and worldviews to arbitrate their differences in a way that is acceptable to all, resulting in decisions that are seen as legitimate in a pluralistic society.


4 Law is a language that lawyers and judges use when they try to prevent or resolve problems of human conflict by using official rules made by the state as their starting point. Civil and criminal trials are not so much legal reasoning as they are a type of historical research to determine facts. That is why we give this function to amateurs or juries. Legal reasoning is what judges do to justify their decision when they cannot demonstrate that they have reached the right answer. It is an attempt to persuade us what the law ought to mean. When a judge reasons well all four elements harmonize or fit together. A judge reasons poorly, and is less persuasive that he has been impartial, if one or more of the elements does not harmonize with the others. Introduction


5 Elements Case Facts 2. Social Background Facts 3. Rules of Law 4. Widely Shared Moral Values and Social Principles Introduction


6 To reason, according to dictionary definitions, may mean to give grounds (reasons) for one’s statements, to argue persuasively, or to engage in discourse. Law , insofar as it has a distinctive subject matter and is founded on distinctive principles and purposes, has not only its own kinds of logic but also its own kinds of rhetoric and its own kinds of discourse, which are, of course, similar to the logic, rhetoric, and discourse of other social institutions and other scholarly disciplines but which nevertheless have certain distinctive characteristics. Legal Reasoning

Legal Reasoning:

7 Legal Reasoning In countries like the United States and England , where thought about law has focused primarily on adjudication, legal reasoning is often identified with the: Intellectual processes by which judges reach conclusions in deciding cases. In countries like France and Germany , on the other hand, where thought about law has focused primarily on codification—that is, the creation of a complex and harmonious body of legal rules and concepts —legal reasoning is often identified with the Intellectual processes by which the rationality and consistency of legal doctrines are maintained and justified.


8 We propose to broaden the definition still further to include also the types of reasoning used in other kinds of legal activity, such as: Making Laws; Administering Laws; The Trial (and not merely the decision) of cases in court; The Drafting of Legal Documents; and The Negotiation of Legal Transactions. Legal Reasoning


9 Case-Based Reasoning Case-Based Reasoning ( CBR ), broadly construed, is the process of solving new problems based on the solutions of similar past problems. An auto mechanic who fixes an engine by recalling another car that exhibited similar symptoms is using case-based reasoning. A lawyer who advocates a particular outcome in a trial based on legal precedents or a judge who creates case law is using case-based reasoning. So, too, an engineer copying working elements of nature (practicing biomimicry ), is treating nature as a database of solutions to problems. Legal Reasoning


10 Case-based reasoning has been formalized as a four-step process: Retrieve: Given a target problem, retrieve from memory cases relevant to solving it.   Reuse: Map the solution from the previous case to the target problem.   Revise: Having mapped the previous solution to the target situation, test the new solution in the real world (or a simulation) and, if necessary, revise.   Retain: After the solution has been successfully adapted to the target problem, store the resulting experience as a new case in memory. Legal Reasoning

Legal Precedent Prior Decisions On-Point:

11 Legal Precedent Prior Decisions On-Point In Common Law Legal Systems, a Precedent or Authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes

Legal Precedent :

12 Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and Delegated legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (regulations promulgated by executive branch agencies). Legal Precedent

Legal Precedent :

13 Case Law or Common Law is the set of decisions of adjudicatory tribunals that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions. Legal Precedent

Legal Precedent :

14 Stare Decisis (Anglo-Latin pronunciation: / stɛəri ː dɨsaɪsɨs /) is a legal principle by which judges are obligated to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere : "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. Legal Precedent

Legal Precedent :

15 Generally speaking, higher courts do not have direct oversight over lower courts, in that they cannot reach out on their own initiative ( sua sponte ) at any time to reverse or overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand. A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is unjust; the lower court may only express the hope that a higher court or the legislature will reform the rule in question. Legal Precedent

Deductive Reasoning Proofs and Certainties:

16 Deductive Reasoning Proofs and Certainties Deductive Reasoning , also Deductive Logic or Logical Deduction or, informally, "top-down" logic , is the process of reasoning from one or more statements (premises) to reach a logically certain conclusion. Deductive reasoning links premises with conclusions. If all premises are true, the terms are clear, and the rules of deductive logic are followed, then the conclusion reached is necessarily true.

Deductive Reasoning:

17 Deductive reasoning (top-down logic) contrasts with inductive reasoning (bottom-up logic) in the following way: In deductive reasoning, a conclusion is reached reductively by applying general rules that hold over the entirety of a closed domain of discourse, narrowing the range under consideration until only the conclusion(s) is left. Deductive Reasoning

Deductive Reasoning:

18 An example of a deductive argument: All men are mortal. Socrates is a man. Therefore, Socrates is mortal. The first premise states that all objects classified as "men" have the attribute "mortal". The second premise states that "Socrates" is classified as a "man" – a member of the set "men". The conclusion then states that "Socrates" must be "mortal" because he inherits this attribute from his classification as a "man". Deductive Reasoning

Deductive Reasoning:

19 Law of Detachment The law of detachment (also known as affirming the antecedent and Modus ponens ) is the first form of deductive reasoning. A single conditional statement is made, and a hypothesis (P) is stated. The conclusion (Q) is then deduced from the statement and the hypothesis. The most basic form is listed below: P → Q (conditional statement) P (hypothesis stated) Q (conclusion deduced) In deductive reasoning, we can conclude Q from P by using the law of detachment. However, if the conclusion (Q) is given instead of the hypothesis (P) then there is no definitive conclusion. Deductive Reasoning

Deductive Reasoning:

20 The following is an example of an argument using the law of detachment in the form of an if-then statement: If an angle satisfies 90° < A < 180°, then A is an obtuse angle. A = 120°. A is an obtuse angle. Since the measurement of angle A is greater than 90° and less than 180°, we can deduce that A is an obtuse angle. If however, we are given the conclusion that A is an obtuse angle we cannot deduce the premise that A = 120°. Deductive Reasoning

Inductive Reasoning Probability:

21 Inductive Reasoning Probability Inductive Reasoning (as opposed to deductive reasoning or abductive reasoning) is reasoning in which the premises seek to supply strong evidence for (not absolute proof of) the truth of the conclusion. While the conclusion of a deductive argument is certain, the truth of the conclusion of an inductive argument is probable, based upon the evidence given.

Inductive Reasoning :

22 The premises of an inductive logical argument indicate some degree of support (inductive probability) for the conclusion but do not entail it; that is, they suggest truth but do not ensure it. Many dictionaries define inductive reasoning as reasoning that derives general principles from specific observations Inductive reasoning is inherently uncertain. It only deals in degrees to which, given the premises, the conclusion is credible according to some theory of evidence. Unlike deductive reasoning, it does not rely on universals holding over a closed domain of discourse to draw conclusions, so it can be applicable even in cases of epistemic uncertainty Inductive Reasoning

Inductive Reasoning :

23 An Example of An Inductive Argument: 90% of biological life forms that we know of depend on liquid water to exist. Therefore, if we discover a new biological life form it will probably depend on liquid water to exist. This argument could have been made every time a new biological life form was found, and would have been correct every time; however, it is still possible that in the future a biological life form not requiring water could be discovered. Inductive Reasoning

Inductive Reasoning :

24 Unlike deductive arguments, inductive reasoning allows for the possibility that the conclusion is false, even if all of the premises are true. Instead of being valid or invalid, inductive arguments are either strong or weak, which describes how probable it is that the conclusion is true. Given that "if A is true then B, C, and D are true", an example of deduction would be "A is true therefore we can deduce that B, C, and D are true". For example: A large enough asteroid impact would create a very large crater and cause a severe impact winter that could drive the non-avian dinosaurs to extinction. We observe that there is a very large crater in the gulf of Mexico dating to very near the time of the extinction of the non-avian dinosaurs Therefore it is possible that this impact could explain why the non-avian dinosaurs went extinct. Inductive Reasoning

Logic Validity Amidst Uncertainty:

25 Logic Validity Amidst Uncertainty Logic (from the Ancient Greek: λογική, logike ) is the branch of philosophy concerned with the use and study of valid reasoning. In the West, logic was established as a formal discipline by Aristotle , who gave it a fundamental place in philosophy. The study of logic was part of the classical trivium, which also included grammar and rhetoric.


26 Logic The concept of logical form is central to logic, it being held that the validity of an argument is determined by its logical form, not by its content. Logic is often divided into three parts: Inductive reasoning, Abductive reasoning, and Deductive reasoning.


27 Traditional Aristotelian syllogistic logic and modern symbolic logic are examples of formal logics. Informal Logic is the study of natural language arguments. The study of fallacies is an especially important branch of informal logic. The dialogues of Plato are good examples of informal logic. Formal Logic is the study of inference with purely formal content. An inference possesses a purely formal content if it can be expressed as a particular application of a wholly abstract rule, that is, a rule that is not about any particular thing or property. Symbolic Logic is the study of symbolic abstractions that capture the formal features of logical inference. Symbolic logic is often divided into two branches: propositional logic and predicate logic. Mathematical Logic is an extension of symbolic logic into other areas, in particular to the study of model theory, proof theory, set theory, and recursion theory. Logic


28 Logic is generally considered formal when it analyzes and represents the form of any valid argument type. The form of an argument is displayed by representing its sentences in the formal grammar and symbolism of a logical language to make its content usable in formal inference. If one considers the notion of form too philosophically loaded, one could say that formalizing simply means translating English sentences into the language of logic. Logic


29 Among the important properties that logical systems can have are: Consistency , which means that no theorem of the system contradicts another.   Validity , which means that the system's rules of proof never allow a false inference from true premises. A logical system has the property of soundness when the logical system has the property of validity and uses only premises that prove true (or, in the case of axioms, are true by definition).   Completeness , which means that if a formula is true, it can be proven (if it is true, it is a theorem of the system).   Soundness , which has multiple separate meanings, creating a bit of confusion throughout the literature. Most commonly, soundness refers to logical systems, which means that if some formula can be proven in a system, then it is true in the relevant model/structure Logic

Objectivity Philosophical:

30 Objectivity Philosophical Objectivity is a central philosophical concept, related to reality and truth, which has been variously defined by sources. Generally, objectivity means the state or quality of being true even outside of a subject's individual biases, interpretations, feelings, and imaginings. A proposition is generally considered objectively true (to have objective truth ) when its truth conditions are met and are "bias-free"; that is, existing without biases caused by, feelings, ideas, etc. of a sentient subject.


31 A second, broader meaning of the term refers to the ability in any context to judge fairly, without bias or external influence; This second meaning of objectivity is sometimes used synonymously with neutrality. Objectivity


32 Personal opinions belong to the changing sphere of the sensible, opposed to a fixed and eternal incorporeal realm that is mutually intelligible. Plato's realism was a form of metaphysical objectivism, holding that the Ideas exist objectively and independently. According to metaphysical objectivists, an object may truthfully be said to have this or that attribute, as in the statement "This object exists," whereas the statement "This object is true" or "false" is meaningless. Objectivity

Limitations of Reasoning and Logic:

33 Limitations of Reasoning and Logic Inductive reasoning takes specific observations and makes general conclusions out of them. It is often contrasted with deductive reasoning, which takes general premises and moves to a specific conclusion. Both forms are useful in various ways. The basic strength of inductive reasoning is its use in predicting what might happen in the future or in establishing the possibility of what you will encounter. The main weakness of inductive reasoning is that it is incomplete, and you may reach false conclusions even with accurate observations.


34 Inductive reasoning takes specific observations and draws general conclusions from those observations. You may look at 100 dogs, for instance, and find that they all have fleas and then declare that all dogs have fleas. The problem, obviously, is that you have not examined all dogs, so as soon as one is found without fleas, your conclusion is proven wrong. Limitations of Reasoning and Logic


35 The strength of inductive reasoning lies in establishing probability. You might observe that when it is very cloudy there is rain. Pure inductive reasoning would say that means it will rain on all cloudy days. You will observe days when this is not true, but through inductive reasoning you establish the probability that it could rain on a cloudy day and prepare accordingly. Another strength is that inductive reasoning allows you to be wrong. It is only through more observation that you determine whether your premises are true. Detectives use this method of reasoning when investigating a crime. They see patterns or make observations that lead them to certain conclusions. That sets their path in motion. Limitations of Reasoning and Logic


36 The greatest weakness of inductive reasoning is that it is limited. In the dog analogy, once you see a dog without fleas, your conclusion that all dogs have fleas is proven incorrect. Another problem comes when your observations are incorrect. If you have only seen large dogs, you might conclude that all dogs are large. The reasoning is sound, but incorrect because the observation was incomplete or incorrect. If you stop with just a few observations and do not continue to investigate, your conclusion will not be valid no matter how firmly you believe it. Limitations of Reasoning and Logic


37 Deductive reasoning is the opposite process to inductive reasoning. In general, terms, inductive reasoning takes a specific example, or examples, and induces that they can be applied to a much larger group. Deductive reasoning, by contrast, starts with a general principle and deduces that it applies to a specific case. Inductive reasoning is used to try to discover a new piece of information; deductive reasoning is used to try to prove it. Limitations of Reasoning and Logic


38 Dred Scott v. Sandford , 60 U.S. 393 (1857) Yick Wo v. Hopkins , 118 U.S. 356 (1886) Plessy v. Ferguson , 163 U.S. 537 (1896) McClesky v. Kemp , 481 U.S. 279 (1987) US v. Clary , 846 F.Supp. 768 (1994) Infuriating Decisions of the US Supreme Court


39 Dred Scot v. Sandford , 60 U.S. 393 (1857) Facts Dred Scott, an enslaved African American man who had been taken by his owners to free states and territories, attempted to sue for his freedom. In a 7–2 decision written by Chief Justice Roger B. Taney, the Court denied Scott's request. For only the second time to that point in its history, the Supreme Court ruled an Act of Congress to be unconstitutional. Infuriating Decisions of the US Supreme Court

Infuriating Decisions of the US Supreme Court:

40 Infuriating Decisions of the US Supreme Court Dred Scot v. Sandford , 60 U.S. 393 (1857)   African-Americans Not US Citizens/ Federal Government Cannot Free Slaves Holding Judgment reversed and suit dismissed for lack of jurisdiction. 1. Persons of African descent cannot be, nor were ever intended to be, citizens under the U.S. Const. Plaintiff is without standing to file a suit. 2. The Property Clause is only applicable to lands possessed at the time of ratification (1787). As such, Congress cannot ban slavery in the territories. Missouri Compromise is unconstitutional. 3. Due Process Clause of the Fifth Amendment prohibits the federal government from freeing slaves brought into federal territories.


41 Yick Wo v. Hopkins , 118 U.S. 356 (1886)   Facts   The government of California worked to prevent Chinese immigrants from working by requiring certain permits that they could not attain and passed legislation to prevent naturalization. Many turned to the laundry business and in San Francisco about 89% of the laundry workers were of Chinese descent. It was often the only job they could find. In 1880, the elected officials of the city of San Francisco passed an ordinance that persons could not operate a laundry in a wooden building without a permit from the Board of Supervisors. The ordinance conferred upon the Board of Supervisors the discretion to grant or withhold the permits. At the time, about 95% of the city's 320 laundries were operated in wooden buildings. Approximately two-thirds of those laundries were owned by Chinese persons. Although most of the city's wooden building laundry owners applied for a permit, only one permit was granted of the two hundred applications from any Chinese owner, while virtually all non-Chinese applicants were granted a permit. Yick Wo ( 益和 , Pinyin: Yì Hé , Americanization: Lee Yick ), was a laundry facility owned by Sang Lee. Sang Lee immigrated to California in 1861. After twenty years of owning the facility as an undocumented immigrant, provisions set out by the San Francisco Board of Supervisors said that he could not continue to run his facility in a wooden building. He continued to operate his laundry and was convicted and fined $10.00 for violating the ordinance. He sued for a writ of habeas corpus after he was imprisoned in default for having refused to pay the fine. Infuriating Decisions of the US Supreme Court


42 Yick Wo v. Hopkins , 118 U.S. 356 (1886)   Neutral Statute/ Discriminatory Enforcement   Holding   Racially discriminatory application of a facially neutral statute violates the Equal Protection Clause of the Fourteenth Amendment. [The] Supreme Court of California and Circuit Court for the District of California [are] reversed. Even though California’s High Courts’ decisions proved outrageous, the US Supreme Court decision in this case upheld the protections afforded by the Fourteenth Amendment, even though the effected Chinese were not US citizens. Infuriating Decisions of the US Supreme Court


43 Plessy v. Ferguson , 163 U.S. 537 Separate But Equal Facts This case was a landmark United States Supreme Court decision upholding the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of "separate but equal". The decision was handed down by a vote of 7 to 1 with the majority opinion written by Justice Henry Billings Brown and the dissent written by Justice John Marshall Harlan. Infuriating Decisions of the US Supreme Court


44 Plessy v. Ferguson , 163 U.S. 537 Separate But Equal Holding The "separate but equal" provision of private services mandated by state government is constitutional under the Equal Protection Clause. Infuriating Decisions of the US Supreme Court


45 McCleskey v. Kemp, 481 U.S. 279 (1987)   Death Row Racism   Facts   This was a United States Supreme Court case, in which the death penalty sentencing of Warren McCleskey for armed robbery and murder was upheld. The Court said the "racially disproportionate impact" in Georgia death penalty indicated by a comprehensive scientific study was not enough to overturn the guilty verdict without showing a "racially discriminatory purpose." [ Infuriating Decisions of the US Supreme Court


46 McCleskey v. Kemp, 481 U.S. 279 (1987)   Death Row Racism   Holding   Despite the presentation of empirical evidence that asserted racial disparity in application of the death penalty, aggregate evidence is insufficient to invalidate an individual defendant's death sentence. Infuriating Decisions of the US Supreme Court


47 U.S. v. Clary , 846 F.Supp. 768 (1994)   Facts Defendant Edward Clary was arrested for possession with intent to distribute 67.76 grams of cocaine base. Clary pled guilty to possession with intent to distribute cocaine base ("crack cocaine"), pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) (hereinafter referred to as the "crack statute"), punishable by a mandatory minimum sentence of 10 years imprisonment. Prior to sentencing, Clary, a black male, filed a motion challenging the constitutionality of the crack statute and contended, inter alia, that the sentence enhancement provisions contained in it and United States Sentencing Guidelines (U.S.S.G.) § 2D1.1 violated his equal protection rights guaranteed by the Fifth Amendment. Infuriating Decisions of the US Supreme Court


48 U.S. v. Clary , 846 F.Supp. 768 (1994)   Holding Evidence of Racism by Prosecutor [is] Required Despite Rules of Criminal Procedure Preventing Disclosure by Prosecutors   Sentencing Disparity Over Certain Types of Drugs: Upheld Note : This was a US District Court case that has not yet reached the US Supreme Court Infuriating Decisions of the US Supreme Court

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