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Abstract

An essay of only five short paragraphs published several years ago by the noted Harvard paleontologist Stephen Jay Gould about a controversial call by baseball umpire Babe Pinelli provides all the foundation necessary for a thorough investigation of the phenomenon of legal reasoning. The present article contrasts Gould’s analysis of a “strike” with the comment by then-Judge John Roberts at his Supreme Court confirmation hearings that he just wanted to “call [the] balls and strikes,” and through this exchange develops a new approach toward identifying—and teaching—the basic elements of sophisticated legal thinking. This article divides legal reasoning into four interrelated elements that anchor and structure the complex process that lays “beneath” the more traditional references to “analogy” and “characterization” and the like on which the existing literature on the topic focuses. The challenge of legal reasoning, and the difficulty of being a decision-maker in this context, arise from the fact that each of these elements generates its own special forms of disagreement and controversy, all of which lawyers and judges attempt to resolve satisfactorily. The result is a complicated, but patterned, thought process that corresponds to the equally complicated, but patterned, nature of the law itself. The four elements of legal reasoning developed in detail here are:

1) Text: understanding the subtle “is/ought” distinction that animates the language in which the law is expressed;

2) Context: identifying with care the “scale” of the circumstances (micro or macro) that will characterize the legal controversy;

3) Hypertext: determining not just the normative values, but the kind of values (categorical or consequential) that will justify an argument or result; and

4) Subtext: appreciating the institutional and political circumstances of the judiciary within our form of government.

The last of these categories will in fact be argued as the true, or at least the only plausible, basis for Justice Roberts’ evidently simplistic comment about “balls and strikes.”


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