Frederick Schauer — Thinking Like a Lawyer

56 published claims from this book.

• A binding precedent obliges courts to follow it or distinguish it.
• A legal citation implicitly legitimizes the entire class of source cited
• A lenient legal interpretation inadvertently broke the debt-peonage labor system
• Analogical reasoning can operate as an intuitive particular-to-particular leap without a conscious rule
• Appellate courts must accept a fact-finder’s findings even when wrong
• Assimile legal status was never defined because defining it would grant unintended rights
• Avoiding unjust legal outcomes has multiple distinct mechanisms, not just interpretation
• Citation practice ultimately defines the boundaries of law itself
• Citations to nonlegal sources make judges’ empirical assumptions contestable
• Congress deliberately delegated antitrust law creation to the courts via broad statutory language
• Constitutional dollar and age thresholds are frozen at obsolete 1791 values
• Courts sometimes reach wrong outcomes to avoid bad future rules
• Describing legal reasoning says nothing about how often it actually occurs.
• English courts once banned citing living authors, a ban that eroded gradually
• Every analogy relies on contested judgments of which similarities are relevant
• Following precedent is treated as a fallacy outside of law.
• Formalism is a central and distinctive feature of law
• Giving a reason for a decision commits one to a broader rule
• Heterogeneous multi-judge panels could offset individual judicial bias
• Irrebuttable presumptions are structurally identical to ordinary legal rules.
• Judges make hidden factual assumptions that parties cannot challenge
• Judicial opinions typically provide legal support for decisions reached on nonlegal grounds
• Law deliberately accepts suboptimal answers to maximize long-term institutional correctness.
• Legal directives range from radically open-ended standards to extraordinarily specific rules
• Legal doctrine constrains lower courts far more than the Supreme Court
• Legal materiality determined by outside rules dissolves precedential constraint entirely.
• Legal Realism was method-agnostic, accepting lawyers’ intuition and social science alike.
• Legislative intent and statutory purpose are conceptually distinct and often conflated
• Literal application of legal rules sometimes produces absurd against-purpose outcomes
• Literal statutory interpretations are defeasible starting points
• Litigated cases are a biased sample, skewing toward hard ones
• Litigated cases self-select to those where both sides have plausible legal arguments
• Litigation selects for fringe and hard cases, not representative legal disputes
• Marbury’s famous presidential-jurisdiction passage was technically dicta.
• New York Times v Sullivan rested on an unchallenged contested empirical claim
• Obeying rules, precedent, and authority means deciding against one’s own best judgment.
• Open texture is the potential for vagueness, not vagueness itself
• Persuasion by past reasoning is not the same as obeying precedent.
• Precedent constrains outcomes while analogy merely supports arguments
• Precedent obliges judges to follow cases they believe were wrongly decided.
• Precision and breadth are independent dimensions of any legal rule
• Realism survives only in a domesticated form, largely ignored in practice.
• Rights and obligations can bind genuinely without being absolute.
• Rules allocate decisions to the present while standards hold them open for the future
• Rules function as rules only if they tolerate some suboptimal outcomes
• Rules necessarily overreach their justifications because of their intrinsic generality
• Rules that always yield to rule-free optimization cease to function as rules
• Stare decisis requires treating prior decisions as binding regardless of perceived correctness.
• Stating a reason creates a presumptive commitment to follow it later
• Statutory interpretation problems usually involve vagueness, not ambiguity
• The Montana natural driving experiment failed because abstract standards breed uncertainty and unpredictable enforcement
• The precedent system itself depends on what is technically dicta.
• The ratio of guilty acquitted to innocents convicted encodes a theory of error costs
• The Rule of Law values predictability and uniformity over individual justice
• The Supreme Court’s seventy-one annual decisions are systematically unrepresentative of how law works
• Traditional doctrinal explanations may genuinely explain many judicial decisions.