Harvard Law Professor Lloyd L. Weinreb is known for his expertise in criminal, constitutional, and intellectual-property law, as well as jurisprudence. His experience in the law — both broad and deep — has taught him the importance of the well-honed analogy. That makes him a hero for Prof. Yabut and the rest of the f/k/a gang (see, e.g., our blurb last month, “differences we can’t see”).
In the face of arguments from heavy-hitters like Richard Posner, Edward Levi and Cass Sunstein against the use of analogical reasoning by judges and lawyers, Weinreb has written Legal Reason: The Use of Analogy in Legal Argument (Cambridge Press 2005). Weinreb explains that the use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts, and he helps the reader learn how to separate the analogical chaff from the whole-grain variety (my lame comparison, not his).
Although written for legal scholars, students, and practitioners, I hope it will become must-read material for webloggers and weblog commentors — so as to ease the frequent agita I get perusing those sources. Legal Reason is filled with examples from both the law and everyday life — and it’s easy enough for editors from all generations and political persuasions to understand. I plan to share examples and ideas from the book with my readers (and my long-suffering friends). And, I already know what a number of my relatives will be getting for Christmas 2005.
like he’s biting
the cold moon…
gargoyle
my shadow looks
like the Old Man’s!
first winter rain
cursing like sailors
at the plum tree…
crows
…………………. by Kobaysahi Issa, translated by David G. Lanoue
Suffolk U. Law School prof Andrew Perlman, guest posting at the Legal Ethics Forum today, compares roadblocks to Bar Admission for Out-of-State Lawyers s to protectionism, and points to his recent article, which argues that the Admission rules are unconstitutional — violating three constitutional provisions designed to prevent economic protectionism – the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges or Immunities Clause, and the dormant Commerce Clause. (“A Bar Against Competition: The Unconstitutionality of Admission Rules for Out- of-State Lawyers” . Georgetown Journal of Legal Ethics, Vol. 18, p. 135, 2004; click here for a synopsis from SSRN, where the article can be dowloaded after a free registration.
- The Comments, joined by Laura Appleman and Dennis Tuchler (plus myself), discuss whether the ABA has been a guild-like force to restrict competition from without and within the profession. My own experience monitoring the profession from a competition perspective suggests that, were it not for the intervention of the antitrust laws, the ABA would still be overly dampening competition (in the name of professional dignity, client protection and similar euphemisms), and that it is now quashing the competitive forces that could be created by fully-informed clients in the digital era.
- Check out the law review article, “The Rise of the Modern American Law School: How Professionalization, German Scholarship, and Legal Reform Shaped Our System of Legal Education,” New England Law Review, Vol. 39, p. 251, 2005, where Laura I. Appleman argues that the move from the apprenticeship system to formalized law school training was encouraged by the ABA/AALS/State bar commissions in the late 19th century, due to concern about the influxof “undesirable” lawyers practicing criminal and personal injury law.
autumn wind–
like the teeth of a comb
pilgrims from the north
let him pass
like a mosquito, a fly…
solitary priest
like people
an upright scarecrow
can’t be found
…………………. by Kobaysahi Issa, translated by David G. Lanoue
A recent blurb at sunEthics put a smile on my face: Attorney’s fees were awarded against a state agency (the parole commission) after it rested its defense on a meritless and untenable interpretation of the law — and where “no plausible basis for the Commission’s interpretation of the controlling statute was advanced.” King v. Florida Parole Comm’n, ___ So.2d ___ (Fla. 1st DCA, No. 1D04-2585, 3/30/2005), reversing the trial court’s interpretation of Fla.Stat. sec. 57.105 (2003).
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