LLA201 Reading Notes

Essay #2

Analogy and Precedent - Minow

Introduction:

  • use of precedent is one of the most distinctive elements of legal reasoning

  • have big placement on judicial opinions

  • precentecental reasioning is stemmed from reasoning by analogy

  • judges and lawyers draw comparisions betweens patterns of facts and concepts

Significance

  • three reasons why legal reasoning uses analogies of precedents

    • committment to equality

      • cases that are similar should be treated alike

      • unlike cases shpuld be treated differently

    • rule of law as an ideal

      • issues should be resolved by reference to established stanards rather than on whim

      • promotes predictability

    • laws use of analogies stems from effectiveness in producing answers to perplexing problems

      • could provide insight how to respond to a case when in doubt

  • serves was basic goal for solving future problems

How it Works

  • two items share some similar traits but then share a third trait that one is known to posses

    • could be judged in the same way

  • analogy is one of the central methods to developing common law

How to Construct and Analogy

  • steps to take

    • make a proper base point (thesis) for comparison in the dispute

      • base point could be a judicial precedent or a statuaroy intepretation

    • identify similarities and differences betwwen base point and disputed instance

    • detemine wether to treat two instances the same because similarities outqeight the differences or to distinguish them

Reason by Disanalogy

  • the three steps from constructing an analogy are also used for making a disanalogy

  • emphazising a diffeerince by illuminating a trait in base or settled example that was not previously highlighted but now seems crucial

Criticisms and Defenses

  • analogy and precedent can be criticized for failing to achieve intended goals

  • when a judge or lawyer uses an analogy it could be with no explanation for why the base case was selected for comparison

  • similar ambiguities appear at the stage of selecting the base case for comparison


Intro to Legal Reasoning - Levi

  • mechanism of legal reasoning should not be concealed by its pretense

  • pretense is that the law is a system of known rules applied by a judge

    • long been under attack

  • legal rules are never clear and if a rule had to be clear before it could be imposed than society would be impossible

  • basic pattern of legal reasoning is reasoning by example

    • aka through precedent

  • law as a three step process

    • similarity is seen between cases

    • rule of law inherent in the first case is announced

    • rule of law is made applicable to the second case

  • method of reasoning is necessary for law

  • if legal process is approached as a method of applying general rules of law to diverse facts it becomes evident

  • it would be bad if rules change from case to case

  • you have to determine what facts are similar to those present when the rule was first announced

  • the key step in the legal process is determining the similarities and differences

    • function of each judge

  • judges can always decide that a fact is considered not similar or irrelevant to the case

  • the present judge can take previous accounts into consideration but ultimatately the current judge has to see law as a consistent whole and find what the determining classification should be

    • could ignore what previous judges have done

  • dictum - is a remark or observation made by a judge in a court decision that is not essential to the legal reasoning required to resolve the case

  • dictum makes judges make their own decisions regardless of what previous judges have done

  • law is a system of rules that are discovered in the process of determining similarities or differences

  • the problem of law is figuring out when to treat different cases as if they were the same

    • good legal system must be willing to pick key similarities and to reason from them to apply a common classification

  • reasoning in law is when the classification changes as the classification is made

    • rules can change when rules are applied

  • peoples opinions can change and new situations can arise

  • law must be ambiguous to permit the infusion of new ideas

  • law is always changing as times change

  • law forum requires the presentation of different examples

  • reasoning by example indicates the hold in which the law process has over the litigants and is a key to many things

  • reasoning by example highlights decisive role where common ideas of society and distinctions by experts can have in shaping the law

  • ideas that are first rejected could win acceptance over time and could end up becoming its own legal category



Obergefell v. Hodges

Justice Kennedy Delivered the Opinion of the Court

  • constitution promises liberty to all people in the US

    • includes rights that allows people to define and express their identity

  • this occurred in 2015

  • petitioners in this case wanted to find liberty that marrying someone of the same-sex is lawful in the same way as marriages of people of the opposite sex

  • some states say that marriage is union between a man and a woman - not same sex

  • petitioners say that respondents violate 14th amendment by denying them the right to marry even if performed in a state where same sex marriage is legal

  • marriage is essential to our hopes and aspirations and it provides a sense of fulfillment

  • to many people allowing same sex marriage it goes against a “timeless institution” of legal marriage being between two people of different sexes

    • in their view marriage by nature is only between a man and a woman

    • having this view doesn’t make them bad people

  • petitioners did not ask for legalized marriage everywhere to devalue opposite-sex marriages but because they want the same responsibilities and privileges that heterosexual couples get when they get married

    • same-sex marriage is the only real path to obtain this committment

  • obergefell case

    • james obergefell and james arthur fell in love and started a long lasting relationship/commit to one another - lived in Ohio

    • in 2011 arthur got diagnoised with ALS (disease with no cure) and wanted to get married before arthur died

    • this forced them to travel to Maryland since Ohio did not recognize/legalize same-sex marriages at the time

    • arthur died three months after their wedding and since Ohio law didnt recognize same-sex marriages they “remained strangers even in death”

    • obergefell was unable to be listed as the surving spouse on arthur’s death certificate

  • DeBoer and Rowse

    • lesbian couple who were both nurses in neonatal deartment and emergency unit

    • committment ceremony in 2007

    • 2009 they fostered and adopted a baby boy and then later that year brought another son into their family (who was abandoned by OG family and had health issues that required full time care)

    • from michigan

    • Michigan at the time only allowed for opposite-sex couples or single people to adopt a child

    • means each child could only have one woman as their legal parent

    • if something were to happen to the other woman the other would have no rights over the children she wasnt allowed to adopt

  • Dekoe and Kostura

    • dekoe was a army reserve sergeant and got orders to deploy to Afghanistan in 2011

    • before his deployment dekoe and kostura married in new york (from tennessee)

    • dekoe was deployed for nearly a year and when he returned the couple settled in tennessee where their marriage was stripped away

  • the petitioners mentioned above wanted to have the opportunity to just to live their lives in the same ways that opposite-sex couples do

    • these petitoners stories proove that whether someones couple is homo or heterosexual they are all just regular people trying to find happiness

  • “Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.” page 2

  • marriage has eveolved over time

  • marriage used to be bases on political or relgious concerns and highly managed by parents but then become a voluntary contract between man and woman and has now expanded to inclued same sex couples and make women more equal as the staus of women has also changed

    • these insights have strengthened the institution of marriage (pg 3)

  • many new perspectives begin with pleas or protests and then are considered in the political speher and in the judical system

  • “in more recent years psychuatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable” (page 3)

  • excluding same-sex couples violates the constitution which means same-sex couples have the right to marry

  • “the nature of injustice is that we may not always see it in our own times” page 4

  • generations that wrote th ratified bill of rghts did not know the extent of freedom and all dimesntions which means it is up to our own generation to protect right to liberty

  • the right to marry is a concept of individual autonomy and is an indivudla choice

  • marriage and love offers the hope of companionship and understanding of assurance and that they are not alone

  • protecting the right to marry safeguards children and families

  • many same-sex couplles provide nurturing homes to their children

  • “without the recognition,, stability, and poredictability marriage offers, their children [of same-sex couples], suffer the stigma of knowing their families are somehow lesser.”

  • in the legal sense when same-sex couples are accepted they will get same benefits of marriage that opposite-sex couples have

    • taxation, inheritance, property rights, rules of intestate succession, spousal privlidge in law of evidence, hospital access, medical decision authoritty, adoption rights, rights and benefits of survivors, birth/death certificates, comapiign finance restrictions, workers comp benefits, heal insurance, and child custody

  • page 6

  • history alone canot be a justifyable way to deny people of their constutional rights

    • precedent does not apply here

  • people who follow certain religions still have the right to advocate that same sex marriage should not be condones

    • this is because the 1st amendment grants that religous people and orgs can teach principles that are central to faiths - even if it opposes same-sex couples

Frontiero v. Richardson

Facts

  • took place in 1973

  • sharron frontiero who was a US lieutenant in the air force wanted to claim her husband was dependent in her applicaqtion to increase her military allounaces and medical/dental benefits

    • federal law

  • couldnt prove that her husband was reliant on her for over 50% of his support so her application was denied

  • male servicemen did not have to prove that their wives depended on them when they applied for increased beneits

  • frontiero sued because she said that the law discriminated against her on the basis of sex

Opinion

  • member of armed services with dependents is entitled to an increased allowance and the dependents are also provided with medical and dental care

  • frontiero wanted increased allowances for her and her husbnd (dependent)

    • would have automatically been granted if it was a male servicemember asking for benefits for his wife without having to provide proof

  • classifications on the basis of sex should be subject to judicial scrutiny

    • just like classifications such as national origin and race

  • others argued that during this time it makes sense to have the extra verification since women had less expeirence in politics, professions, or business and that men are more knowledgebale on business affairs compared to women

    • court stills aid that preference for male applicants is unconstitutional

  • US has large history with sex discrimination

  • women used to be extremely limited in rights and it has vastly improved in recent decades

  • sex and race are immutable characteristics

    • cannot be changed - born with them

  • discrimination or limited rights due to one’s immutable characteristics violates constitution

  • in Civil Rights Act of 1964 it said that no employer, labor union, or organization can discriminate on basis of race, color, religion, sex or national origin

    • ties into essay because this has already been expanded to include sexual orientation

  • “classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjectured to strict judicial scrutiny.” page 4