Discovering the Logic of Legal Reasoning, Vern R. Walker. Idea essay in the Hofstra Law Review 35:1687-1707 (2007). Copy of full text available for download in .pdf format.
From the Introduction:
The rule of law rests on the quality of legal reasoning. The rule of law requires that similar cases should be decided similarly, that each case should be decided on its merits, and that decision-making processes should comply with applicable rules of procedure and evidence. Making the reasoning behind such decision-making transparent and open to scrutiny shifts the decisions away from mere subjective preference and toward objective rationale. An important means, therefore, of achieving the rule of law is articulating and evaluating the various elements of legal reasoning—the reasoning involved in interpreting constitutions, statutes, and regulations, in balancing fundamental principles and policies, in adopting and modifying legal rules, in applying those rules to cases, in evaluating evidence, and in making ultimate decisions.
Despite our need for transparent and sound reasoning, we in the legal profession devote surprisingly little research to developing our own general methodology. …
This Idea begins a discussion about why legal reasoning may exhibit distinctive features that merit logical analysis. It suggests that the demands of the rule of law combine with the pragmatic nature of legal reasoning to evolve distinctive patterns of reasoning. The Idea briefly discusses three types of legal reasoning. Rule-based reasoning and evidence evaluation, as they are found in law, exhibit distinctive logical features. So does second-order process reasoning, which can modify both rule-based reasoning and evidence evaluation. Taken together, these three types give legal reasoning a complex “default” character that is distinctive to it. In addition, the structure of the legal community promotes the evolution of reasoning patterns that are well-adapted to the task of solving legal problems. Empirical research is needed to discover the actual patterns that have evolved. This Idea cannot of course lay out designs for such empirical research. It must be enough for now to suggest why such research is needed, and why it promises to be a successful means of discovering the logic of legal reasoning.