In a world awash in "fake news," where public figures make unfounded assertions as a matter of course, a preeminent legal theorist ranges across the courtroom, the scientific laboratory, and the insights of philosophers to explore the nature of evidence and show how it is credibly established. In the age of fake news, trust and truth are hard to come by. Blatantly and shamelessly, public figures deceive us by abusing what sounds like evidence. Preeminent legal theorist Frederick Schauer proposes correctives, drawing on centuries of inquiry into the nature of evidence. Evidence is the basis of how we know what we think we know, but evidence is no simple thing. Evidence that counts in, say, the policymaking context is different from evidence that stands up in court. Law, science, historical scholarship, public and private decisionmaking-all rely on different standards of evidence. Exploring diverse terrain including vaccine and food safety, election-fraud claims, the January 2021 events at the US Capitol, the reliability of experts and eyewitnesses, climate science, art authentication, and even astrology, The Proof develops fresh insights into the challenge of reaching the truth. Schauer combines perspectives from law, statistics, psychology, and the philosophy of science to evaluate how evidence should function in and out of court. He argues that evidence comes in degrees. Weak evidence is still some evidence. The absence of evidence is not evidence of absence, but prolonged, fruitless efforts to substantiate a claim can go some distance in proving a negative. And evidence insufficient to lock someone up for a crime may be good enough to keep them out of jail. This book explains how to reason more effectively in everyday life, shows why people often reason poorly, and takes evidence as a pervasive problem, not just a matter of legal rules.

This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof. In addressing the question whether legal reasoning is distinctive, Frederick Schauer emphasizes the formality and rule-dependence of law. When taking the words of a statute seriously, when following a rule even when it does not produce the best result, when treating the fact of a past decision as a reason for making the same decision again, or when relying on authoritative sources, the law embodies values other than simply that of making the best decision for the particular occasion or dispute. In thus pursuing goals of stability, predictability, and constraint on the idiosyncrasies of individual decision-makers, the law employs forms of reasoning that may not be unique to it but are far more dominant in legal decision-making than elsewhere. Schauer's analysis of what makes legal reasoning special will be a valuable guide for students while also presenting a challenge to a wide range of current academic theories.

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Written by a global network of experts, it explores the topic against the background of a variety of legal traditions.Common law and civil law are typically presented as antagonistic players on a field claimed by diverse legal systems: the former being based on precedent set by judges in deciding cases before them; the latter being founded on a set of rules intended to govern the decisions of those applying them. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law; who is to create them; who is (merely) to draw from them; and whether the law itself is pure each step of the way, or whether the law's purity may be tarnished when confronted with a set of contingent facts. These differences have deep roots in (legal) history - roots that allow us to trace them back to distinct traditions. Nevertheless, it is questionable whether the divide thus depicted is as great as it may seem: international and supranational legal systems unconcerned by national peculiarities appear to level the playing field. A normative understanding of constitutions seems to grant ever-greater authority to High Court decisions based on thinly worded maxims in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in the common law tradition. These and similar observations demand a structural reassessment of the role of judges, the power of precedent, the limits of legislation and other features often thought to be so different in common and civil law systems. The book addresses this reassessment.

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Written by a global network of experts, it explores the topic against the background of a variety of legal traditions.Common law and civil law are typically presented as antagonistic players on a field claimed by diverse legal systems: the former being based on precedent set by judges in deciding cases before them; the latter being founded on a set of rules intended to govern the decisions of those applying them. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law; who is to create them; who is (merely) to draw from them; and whether the law itself is pure each step of the way, or whether the law's purity may be tarnished when confronted with a set of contingent facts. These differences have deep roots in (legal) history - roots that allow us to trace them back to distinct traditions. Nevertheless, it is questionable whether the divide thus depicted is as great as it may seem: international and supranational legal systems unconcerned by national peculiarities appear to level the playing field. A normative understanding of constitutions seems to grant ever-greater authority to High Court decisions based on thinly worded maxims in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in the common law tradition. These and similar observations demand a structural reassessment of the role of judges, the power of precedent, the limits of legislation and other features often thought to be so different in common and civil law systems. The book addresses this reassessment.

This supplement brings the principal text current with recent developments in the law.

This widely adopted soft cover casebook, adapted from Choper, Dorf, Fallon, and Schauer's Constitutional Law but with numerous additional references and comments, is designed for a two- or three-unit course in the First Amendment. The new Seventh Edition has been thoroughly revised, tightened, and updated. The authors present the materials in a way that permits instructors to depart from the organization of the casebook with relative ease. The authors also expose students to original perspectives or perspectives they might otherwise miss. Notes and questions enable students to study the variety of competing views embodying the First Amendment as they emerge from concrete cases rather than imposing an abstract characterization and classification on the student at the outset of the study. And the extensive references help students to situate the cases within larger academic and theoretical debates. The new edition of the casebook contains a revised organization of the basic freedom of speech materials on content regulation, forum analysis, and the coverage/scope of the First Amendment, and further includes hundreds of new cases and references. There has been substantial editing to make way for the new material, and thus the book remains of appropriate size for either a two- or three-unit course. The new speech cases cover issues involving the types of content regulation (Reed v. Town of Gilbert), government speech (Walker v. Texas Division, Sons of Confederate Veterans), racist speech (Matal v. Tam), commercial speech (Expressions Hair Design v. Schneiderman), compelled expression (Janus v. AFSCME and National Institute of Family and Life Advocates v. Becerra), and government motive (Heffernan v. City of Paterson). On freedom of religion, the 7th edition adds extensive coverage of the new cases involving argued hostility to particular religions or religious beliefs (Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii) while also providing materials to facilitate discussion and analysis of questions regarding claimed exemptions from laws of general application.

Originally published in 1949, An Introduction to Legal Reasoning is widely acknowledged as a classic text. As its opening sentence states, "This is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the Constitution." In elegant and lucid prose, Edward H. Levi does just that in a concise manner, providing an intellectual foundation for generations of students as well as general readers. For this edition, the book includes a substantial new foreword by leading contemporary legal scholar Frederick Schauer that helpfully places this foundational book into its historical and legal contents, explaining its continuing value and relevance to understanding the role of analogical reasoning in the law. This volume will continue to be of great value to students of logic, ethics, and political philosophy, as well as to members of the legal profession and everyone concerned with problems of government and jurisprudence.

This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the "normative force of the factual" in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek's concept still provides astonishing insights on the dichotomy of "is" and "ought to be", the emergence of the normative, the efficacy and the defeasibility of (legal) norms, and the distinct character of what legal theorists refer to as "normativity". It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation.

Many legal theorists maintain that laws are effective because we internalize them, obeying even when not compelled to do so. In a comprehensive reassessment of the role of force in law, Frederick Schauer disagrees, demonstrating that coercion, more than internalized thinking and behaving, distinguishes law from society s other rules.

Reinvigorating ideas from Jeremy Bentham and John Austin, and drawing on empirical research as well as philosophical analysis, Schauer presents an account of legal compliance based on sanction and compulsion, showing that law s effectiveness depends fundamentally on its coercive potential. Law, in short, is about telling people what to do and threatening them with bad consequences if they fail to comply. Although people may sometimes obey the law out of deference to legal authority rather than fear of sanctions, Schauer challenges the assumption that legal coercion is marginal in society. Force is more pervasive than the state s efforts to control a minority of disobedient citizens. When people believe that what they should do differs from what the law commands, compliance is less common than assumed, and the necessity of coercion becomes apparent.

Challenging prevailing modes of jurisprudential inquiry, Schauer makes clear that the question of legal force has sociological, psychological, political, and economic dimensions that transcend purely conceptual concerns. Grappling with the legal system s dependence on force helps us understand what law is, how it operates, and how it helps organize society."

This supplement brings the principal text current with recent developments in the law.

This supplement brings the principal text current with recent developments in the law.

CasebookPlus Softbound - New, softbound print book includes lifetime digital access to an eBook, with the ability to highlight and take notes, and 12-month access to a digital Learning Library that includes self-assessment quizzes tied to this book, leading study aids, an outline starter, and Gilbert Law Dictionary.

This long-popular casebook has two main distinguishing attributes. First, because students benefit from sustained engagement with Supreme Court opinions, pivotal cases are edited less substantially than in many other books. Second, because Constitutional Law is an argumentative practice situated in ongoing debates, this edition follows its predecessors in exposing students to diverse perspectives in the Notes and Questions that follow most principal cases. Instructors will especially like the illuminating and provocative extracts from the literature that accompany important new cases. In preparing the new edition, the editors have made judicious cuts to enable the addition of new material and have thoroughly revised several chapters to reflect developments in the case law. CasebookPlus Hardbound - New, hardbound print book includes lifetime digital access to an eBook, with the ability to highlight and take notes, and 12-month access to a digital Learning Library that includes self-assessment quizzes tied to this book, leading study aids, an outline starter, and Gilbert Law Dictionary.

This long-popular casebook has two main distinguishing attributes. First, because students benefit from sustained engagement with Supreme Court opinions, pivotal cases are edited less substantially than in many other books. Second, because Constitutional Law is an argumentative practice situated in ongoing debates, this edition follows its predecessors in exposing students to diverse perspectives in the Notes and Questions that follow most principal cases. Instructors will especially like the illuminating and provocative extracts from the literature that accompany important new cases. In preparing the new edition, the editors have made judicious cuts to enable the addition of new material and have thoroughly revised several chapters to reflect developments in the case law.

This book employs a careful, rigorous, yet lively approach to the timely question of whether we can justly generalize about members of a group on the basis of statistical tendencies of that group. For instance, should a military academy exclude women because, on average, women are more sensitive to hazing than men? Should airlines force all pilots to retire at age sixty, even though most pilots at that age have excellent vision? Can all pit bulls be banned because of the aggressive characteristics of the breed? And, most controversially, should government and law enforcement use racial and ethnic profiling as a tool to fight crime and terrorism?

Frederick Schauer strives to analyze and resolve these prickly questions. When the law "thinks like an actuary"--makes decisions about groups based on averages--the public benefit can be enormous. On the other hand, profiling and stereotyping may lead to injustice. And many stereotypes are self-fulfilling, while others are simply spurious. How, then, can we decide which stereotypes are accurate, which are distortions, which can be applied fairly, and which will result in unfair stigmatization?

These decisions must rely not only on statistical and empirical accuracy, but also on morality. Even statistically sound generalizations may sometimes have to yield to the demands of justice. But broad judgments are not always or even usually immoral, and we should not always dismiss them because of an instinctive aversion to stereotypes. As Schauer argues, there is good profiling and bad profiling. If we can effectively determine which is which, we stand to gain, not lose, a measure of justice.

Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power among decision-makers.