by Judge Richard Poland,
Many pre-law students and others are curious about the differences between legal reasoning and other styles of reasoning. When undergraduates begin law school, law professors will tell these new law students that they need to learn how to “think like a lawyer.” What is legal reasoning and what does it really mean to “think like a lawyer”?
Legal scholars generally agree that legal reasoning is the thinking process by which lawyers argue and judges decide actual cases. According to Brian Porto and others, legal reasoning is a process comprised of three separate components. Those components are Reasoning by Analogy, Linguistic Analysis, and Judicial Discretion.
It has been my experience as a lawyer and a judge that the first component, Reasoning by Analogy, is the most common method of reasoning used by the legal profession. (Eg. The case at bar is like the previously decided case of Smith v. Jones.) It involves finding cases or principles that courts have already decided and arguing that the case under discussion is similar to that prior case (stare decisis) or principle.
For example, in Texas v. Johnson the defendant Johnson burned the American flag to protest President Reagan's re-nomination. The question became whether this act of burning the flag was speech protected under the First Amendment. The argument is that this action is political speech just as writing a letter to the editor of a newspaper decrying the President’s foreign policy is political speech. Both are examples of speech protected by the First Amendment. The first is a form of speech that is known as expressive conduct, “sufficiently imbued with a communicative element.” The latter is simply written speech. Because both forms of speech send a political message which is readily understandable by others, both are protected from governmental interference under the First Amendment.
Similarly, in Tinker v. Des Moines the Supreme Court stated that wearing a black armband to protest U.S. hostilities in Vietnam is "akin to pure speech" and therefore falls under the protection of the First Amendment just as oral or written protestations of the war are speech which can not be proscribed. So if we reason by analogy, speech can be expressive conduct as well as it can be the spoken or written word.
Also in Griswold v. Connecticut, the Court inferred an individual Right to Privacy from various provisions in the U.S. Constitution (1st, 3rd, 4th, 9th Amendments, etc.) The Court then extended this right to privacy to include married couples by asserting that a State can not interfere with the right of a married couple to practice contraception. Reasoning by analogy, this right to privacy was later extended to unmarried couples in Eisenstadt v. Baird. However, the Court later found in Bowers v. Hardwick that this same right of privacy in the bedroom did not extend to homosexual couples. Thus, reasoning by analogy has its limitations. Nevertheless, the Court is now reconsidering Bowers and may come to a different conclusion.
Linguistic Analysis is the second component of Legal Reasoning. The question is what do the words used by the legislatures or the judges really mean. The legal community uses often contradictory tools like plain-meaning, context, canons of construction, legislative intent, statutory purpose or spirit of the law in a creative fashion to find the true meaning. The result which you want to obtain may affect which linguistic tool you select. For example, what does the word "parent" mean in The Federal Kidnapping Act as passed into law by the U.S. Congress. Does it mean just the biological parents or does it include, for example, adoptive parents, grandparents, step-parents, parents whose rights have been terminated, or legal guardians. The Congress may have given us some guidance, but lawyers and judges need to decide what words really mean when they argue and decide cases.
Judicial Discretion is the last component. This refers to the public policy involved and/or personal views by a judge about the court's role or a legal concept.
For example, in Roe v. Wade the right to privacy was extended to a pregnant woman. It was held that the right to terminate her pregnancy through the 1st trimester (now until the point of viability under Planned Parenthood v. Casey) was a privacy right of a woman with which the government could not interfere.
Do future Supreme Court justices have the judicial discretion to change this? Yes. Will they? Probably not. The Court's role in establishing this right was pre-eminent. The Court would lose a great deal of legitimacy, credibility, and authority with the American people if it eliminated by a 5-4 vote that which has been a fundamental constitutional right of all women for 30 years. This Court will be especially cautious in the future because of its loss of esteem in much of the public eye as a result of the Bush v. Gore decision. Chief Rehnquist will be especially cognizant of the legacy of his Court.
Succinctly, this is what constitutes Legal Reasoning. It is not easily mastered, even by those of us who think that we use this process on a daily basis.