UNDERSTANDING JUDICIAL REASONING: CONTROVERSIES, CONCEPTS AND CASES by Roland Case.  Toronto, Canada: Thompson Educational Publishing, Inc., 1997. 232 pp. Paper $24.95. ISBN 1-55077-082-9.

Reviewed by Robert A. Carp, Department of Political Science, University of Houston.
 

The legal and academic communities in the United States have long had access to numerous quality texts that have sought to explain and predict the process by which American judges reason the way they do. Edward Levi’s 1948 book AN INTRODUCTION TO LEGAL REASONING is still regarded as a classic, and in more recent years scholars have utilized such books as Lief Carter’s REASON IN LAW and Steven Burton’s AN INTRODUCTION TO LAW AND LEGAL REASONING. The text reviewed here is written by a Canadian academic, and it addresses the way jurists reason in Canada. This makes for an interesting comparison because despite some structural differences in the ways the American and Canadian judicial systems are set up, both are rooted in the English common law tradition and both are grounded in the case method and stare decisis.. Likewise both systems in recent decades have been beset by similar criticisms which allege that judges often act without restraint and/or that they legislate rather than adjudicate from the bench.

Case’s purpose is not to describe how Canadian judges actually reason through a decision, that is, it is not an attempt to portray jurists’ underlying motivations, biases, or mental states as they think through a case. Rather, the author’s goal is to outline how judges should reason if they follow the prescribed and approved standards that represent the best in the judicial tradition. To accomplish this task Roland divides his text into three substantive sections (with a fourth one devoted to references including a table of cases and study questions). In the first section he discusses the basic issues inherent in the judge’s duty to apply legal principles to a particular case. An initial chapter addresses the "cynical view" of judicial decision making, that is, that judges really do whatever they personally want to do and use the written decision as merely a rationalization to justify what they have decided. A second chapter sets forth the basic rules of the game for "proper" judicial reasoning, and a third chapter discusses how these rules accommodate for unusual or unexpected circumstances in applying the law.

In Section Two, Case outlines three modes of reasoning authorized and constituted by the decision-making rules explained in Chapter 2. The first of these modes he terms "reasoning from interpretive guidelines" which impels the judge to consider applying the law according to its meaning (e.g., the law framers’ intentions or the plain or literal meaning). A second mode looks at "reasoning from prior cases," that is, taking a principle from one case and applying it to the facts of another cases. A final chapter in this section touches on "reasoning from principle." This final mode requires the jurist to settle disputes that cannot be resolved by pre-established rules by "evaluating proposed principles in light of the broader constellation of legal standards." In this chapter his examples come from Canadian British, and American cases.

In Section Three there are large extracts taken from five controversial cases, and, again, the author dips into American and British cases for his illustrations. He uses these cases to exemplify the various modes of judicial reasoning that were set forth in the previous section. In discussing each case the author’s does a thorough job of putting the case into the proper legal and historical context. He provides an overview of the arguments of both parties and then provides key excerpts from the various decisions, majority or dissenting, to exemplify the nature of the judges’ decision making processes.

Although the book is not long, Case packs a lot of insight and useful information into the text. He assumes that his readers have some understanding about the structure and workings of Canadian, British, and American court systems, and in this sense it is not a book for beginners. Still, the author is quick to define his terms and concepts and he lays out his arguments with great care and clarity. The readership audience should include attorneys, upper-division undergraduates and graduate students enrolled in judicial process and constitutional law courses, and members of the general public who have some prior knowledge of Canadian or American court systems. Because of the similarity of the U.S. and Canadian judicial traditions the readership audience in either country would appreciate the contents of this text.

The footnotes and references placed in Section Four are quite detailed, and the author is wise to have placed them at the end of the text so as to allow for a smoother read. Likewise. the "Study Questions" in the final section should prove useful for students who wish to consider the case studies in grater detail. Finally, Case’s bibliography at the very end of the book is extensive and provides excellent ideas for those interesting in reading in greater detail about this general subject matter.
 

Burton, Steven J. 1985 AN INTRODUCTION TO LAW AND LEGAL REASONING. Boston: Little Brown and Company.

Carter, Lief H. 1998. REASON IN LAW. 5th ed. New York: Harper Collins.

Levi, Edward H. 1948 AN INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press.