Legal Reasoning and Political Conflict

Paperback | February 1, 1997

byCass R. Sunstein

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The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the SupremeCourt, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, Sunstein, one of America's best known commentatorson our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversarieswho would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thusjudges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, andEastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaborationof rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives bymarried couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement.By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understandingof the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision ofthe role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.

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From Our Editors

Jurisprudence expert Cass Sunstein provides a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges should consider each case individually and avoid broad, abstract reasoning. Sunstein writes with ...

From the Publisher

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the SupremeCourt, especially in the area of race relations, ...

Cass R. Sunstein is Karl N. Llewellyn Distinguished Service Professor of Jurisprudence and Co-Director of the Center on Constitutionalism in Eastern Europe at the University of Chicago. One of America's preeminent writers on legal issues, he is the author most recently of Free Markets and Social Justice (OUP 1997), and Democracy and ...

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Format:PaperbackDimensions:240 pages, 9.21 × 6.1 × 0.79 inPublished:February 1, 1997Publisher:Oxford University Press

The following ISBNs are associated with this title:

ISBN - 10:0195118049

ISBN - 13:9780195118049

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From Our Editors

Jurisprudence expert Cass Sunstein provides a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges should consider each case individually and avoid broad, abstract reasoning. Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society

Editorial Reviews

"Cass Sunstein's new book makes a significant addition to our understanding of how law works and of the nature of law itself. He explains in lucid prose, with many concrete examples, the components of good (and bad) legal reasoning and how they contribute to the outcome of legal controversies.Sunstein's ideas, which combine keen insight, common sense, and a vast knowledge of legal materials, are sure to prompt discussion. His account of 'incompletely theorized agreements' especially is original and important. The book will be of great value to scholars as well as to those who arebeginning the study of law."--Lloyd L. Weinreb, Dane Professor of Law, Harvard University