Wilson R. Huhn, Teaching Legal Analysis Using a Pluralistic Model of Law, 36 Gonz. L. Rev. 433 (2001).
What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. Benjamin N. Cardozo**
“[T]he values society labors to preserve are contradictory.” Phillip Bobbit***
The purpose of this Article is to describe a pluralistic model of reasoning that may be used to teach the skills of legal analysis. There are different ways to categorize legal arguments. Perhaps the most common method is to identify different legal arguments with specific schools of jurisprudence or moral philosophy. This is the standard approach followed by leading scholars such as Lon Fuller. In a classic article, Fuller illustrated how a murder case could be analyzed utilizing jurisprudential frameworks such as positivism, natural law, social contract, practical wisdom, and legal realism. Another example of this method of characterizing legal arguments was illustrated by R. Randall Kelso, who identified four schools of thought that have dominated the reasoning of the Supreme Court at different periods of American history. Identifying different types of legal arguments by their jurisprudential school is useful for showing the relationship of legal thought to classic forms of political and moral reasoning and for sketching trends of analysis over time.…Read more