Jurisprudence and Persuasion

This innovative book offers a case-based approach to arguments about the nature of law and persuasion. Its unifying insight is that every decided case has a theory or philosophy within it whether acknowledged or not and that there is professional value in developing the skill to discern, articulate, and analyze it. Offering a flexible platform for either an introduction to law and legal reasoning or an in-depth course in jurisprudence and advocacy, the book works first through decided cases and then offers context and depth through the writings of jurists and philosophers. Major themes in the cultural and intellectual history of the law are made accessible and always with a sense of what practical difference they make. Part I enables students to use case analysis to connect with some of the traditional and contemporary schools of jurisprudence across the ideological spectrum (e.g., natural law, positivism, legal realism, law and economics, feminist legal theory, and critical race theory). Part II, in a modern riff on what prior generations of lawyers would have called without irony or deprecation 'rhetoric,' analyzes certain identifiable and recurring types of legal arguments, including reasoning by default (e.g., fictions, presumptions, and burdens), recurring fallacies (e.g., begging the question, arguments ad hominem, asserting the consequent), and the nested problems of interpreting statutes and the common law. Understood as the art of argument, it is exactly what lawyers do. Honing it and keeping it respectable is in every law professor's job description. Part III applies the skills and insights from the rest of the book by applying them in a particular setting, focused on the question whether international law is really 'law' and what turns on that designation.