THE CRAFT OF LEGAL REASONING by Brian L. Porto.  Fort Worth: Harcourt Brace, 1998. 195 pp. Paper $22.50. ISBN 0-15-503696-3.

Reviewed by JD Droddy, Department of Government, Western Kentucky University jd.droddy@wku.edu
 

Brian L. Porto has turned out a well written (if somewhat overpriced) little book designed to help undergraduates understand the process of legal reasoning that most judges use to help them decide cases. In fact, there are at least two other groups that, in my view, could benefit greatly from this book.

The most obvious of these is beginning law students. Porto, himself, acknowledges this choice in the preface. He reports having experienced frustration at having to teach himself legal reasoning "despite five years of graduate study in political science and three years in law school." Having had a similar experience, I can testify to the validity of the point he makes.

The less obvious candidate group for reading this book consists of some of those political scientists who are intense devotees of the "attitudinal model" of judicial behavior. I don’t include all proponents of the attitudinal model; just those who seem to equate the "legal model" with "mechanical jurisprudence" and who insist that judges and justices do not admit that attitudes, biases, preferences, etc. play any part in judicial decision making or that judges exercise discretion. (See Segal and Spaeth, 33, for example).

As Porto makes clear, and as most lawyers and proponents of the legal model would concede, judges and justices do exercise discretion and their ideologies, biases, and prejudices, etc. do affect their decision making. Still, legal reasoning is far removed from the freewheeling, unbridled preference-enforcing behavior that some proponents of the attitudinal model claim.

In informing the reader about the craft of legal reasoning, Porto begins by making the case for studying the subject. Moreover, he gives the reader an overview of the process itself. He explains that legal reasoning is composed of three main components, which he identifies as: (1) reasoning by analogy; (2) linguistic analysis; and (3) judicial discretion. Each of these components is explained in detail. He explains that judges use both deductive and inductive reasoning (and how they do each). He also explicates the doctrine of stare decisis, outlining how it contributes to needed stability and predictability in the law, without rigidly binding the judges to all past decisions. Along the way, he introduces the reader to the concept of "fact freedom" — the discretion a judge has to assign a different degree of importance to a fact in a particular case than another judge did to a similar fact in a precedent case. And all of that is in the first chapter!

In each of Chapters 2-5, Porto concentrates on a particular type of judicial decision-making context, informing the reader of the different challenges faced and techniques used in deciding different types of cases. In Chapter 2, for example, he explains the nature of statutory construction, and then guides the student through such techniques as "The Plain Meaning Rule", "Context", "Statutory Purpose", "Legislative History", and "Presumptions and Canons of Statutory Construction". In addition to a description, there is a liberal dose of the criticisms and problems associated with each.

Chapter 3 deals with constitutional interpretation. Porto assumes very little prior knowledge of the subject. He includes such topics as "Federalism", "Separation of Powers", and "Civil Liberties." He introduces the novice to different methods of constitutional interpretation ("historical", "textual", "structural", "doctrinal", "prudential", and "ethical" -- a term he uses for "noninterpretivism"). For each method, he offers a thorough but simple explanation. One particularly good topic in the constitutional interpretation chapter is an explanation of how to "evaluate" constitutional opinions. He explains to the reader that there is no one "right" way to interpret the constitution, but does offer some guidelines for what a well-reasoned constitutional opinion should contain. These are "elements" that should be included to support the opinion that can be used by the reader of the opinion to evaluate it.

From constitutional law, Porto moves to common-law decision making. He provides some excellent historical background to the reader (including a good explanation of common law vs. civil law traditions) before introducing some of the common-law doctrines, such as "contributory negligence", "assumption of risk", "fellow-servant rule", "res ipsa loquitur", and "last clear chance" doctrine.

The final decision-making context discussed is administrative regulation. In Chapter 5, the author gives a mini-course in administrative procedure, including judicial review of administrative rule making and adjudication.

Each chapter in this book is well written and informative. The book is particularly well suited for classroom use. The chapters are 20-30 pages long and quick reading. They are good sizes for a single assignment.

In addition to well-thought-out explanations, Porto serves up a generous helping of examples to illustrate his points. Illustrative cases are sprinkled throughout the book; each seems quite appropriate to illustrate the point being made. Also, there are some excellent discussion questions at the end of each chapter, which should stimulate some interesting class discussions. As an added bonus there are three appendices, two of which succinctly outline the structure and jurisdiction of federal courts. The third might be (but isn’t) called the "Novice’s Guide to Legal Resources".

As should be apparent from the foregoing review, I like this book very much. I am seriously considering restructuring my Judicial Process course to include five lessons for which this book would be the text. I am hesitant to do so for only one reason. In my view this short, paperback book’s list price is a bit too high ($22.50) to justify my assigning it as a mandatory supplemental text for use in only five class periods. Still, the book is excellent and I highly recommend it.
 

Segal, Jeffrey A., and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL (New York: Cambridge University Press).