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