irrelevant verbiage falsities slip by
sciences many of thempalma, apgs
do not find anything obvious at all
much less what is obvious to mrs evoy
for testing your views may
i suggest
Pando?
see f bouchard on who
Pando is
he is a quaking aspen
On Wed, 15 Nov 2017 at 16:47, Redacted sender jlsperanza for DMARC <
dmarc-noreply@xxxxxxxxxxxxx> wrote:
McEvoy notes: “Much of law (some might say much of science also) is about--
spelling out what (at least in hindsight) may appear obvious.”
This is interesting. It should be contrasted with “what may appear
_tautological_” and with “what may appear obvious because it _is_ obvious.”
The obvious reference here is to Grunebaum, reminiscing:
In a lecture, G. H. Hardy announced that a proposition, at which point
one of his addressees demurred and said that it was not obvious. *Hardy* then
halted the lecture, paced outside the lecture room for a quarter of an
hour, returned, and said “*It is obvious*.”
McEvoy goes on: “But it is important not to overlook the so-called
obvious. So please forgive this amplification of something that may seem
obvious once stated but which may be important to understanding the
majority view in *Roberts*. It is this: by adopting a far-reaching rule
(that amendment of a pre-existing action to switch capacities is NEVER
allowable outside the limitation period for beginning an action in a
representative capacity - even where there are "special circumstances"),
the majority make clear that legal advisors must tell clients that if there
is any possibility that at some point their case needs to take the form of
a ‘derivative action,’ they need to bring this action within the limitation
period (rather than think they might amend their pre-existing action in
their personal capacity outside the limitation period). Now nearly everyone
should be able to adapt themselves to this rule without any injustice,
which is therefore preferable on grounds of efficiency [cost-benefit] to a
less far-reaching rule that opened the door to plaintiffs with "special
circumstances" seeking to switch capacities in a pre-existing action
outside the limitation period. If everyone can adapt themselves to this
rule without injustice, we need not worry much about the potential
injustice where people fail to adapt to it. Such people, together perhaps
with their legal advisors, have brought the "injustice" on themselves. The
fact that this might do some injustice to the plaintiff before them, who of
course acted before this far-reaching rule was established, is not
something that will weigh much with the majority (as against the
prospective efficacy of the rule established). In *Roberts* the Law
Lords were particularly unlikely to lose any sleep over the effect of their
ruling on the plaintiff: looked at closely, there is something iff-y about
the whole scenario leading to the action (*e.g.* why no evidence from
the other beneficiaries of the estate?). Iffy-ness aside, the plaintiff
made two fundamental mistakes in conducting their litigation and have
brought their problems on themselves - first, they began an action in their
personal capacity, for negligence by the estate's legal advisors, when they
should have known case law shows the legal advisors have a duty of care to
the estate but not to its beneficiaries; second, there was a clear window
of opportunity for the plaintiff to switch capacities, within the
limitation period, after they knew the action in their personal capacity
was doomed - but (for reasons not really explained) they didn't do this. It
is clear enough my points above are based on looking at the problems in
very practical terms - and not on analysing concepts *etc.* This, I
suggest, reflects how the courts actually look at legal problems (despite
the make-believe of some legal philosophers).”
In “Grunebaum, The Oxonian Philosopher,” I was wondering a few questions,
which may be summed up as:
i. What the Roberts case SAYS about legal reasoning
in general.
ii. Why philosophers are right in saying that legal
reasoning is not different from other sorts of reasoning, or rather, why it
still makes sense to look for the general ‘schemata’ of reasoning that will
apply to legal and non-legal cases.
iii. More importantly, perhaps, what started McEvoy’s
formulation in the first place (re: the “than” staying at home, etc.) in
terms of W3. In these comments above, by referring to this or that ‘rule,’
grounded on social practices, and a rule which was adopted at this or that
time, it all seems a bit removed from W3 seen here as a “Platonic realm.”
Mind, Grunebaum loved a platonic realm. He gave the example of ‘circle.’
There are no sublunary circles – this may refer to McEvoy’s reference to
‘science’ above, provided we consider mathematics a science --, only
imperfect figures we ‘call’ or _deem_ circles. Yet, we may allow for this
Platonic idea of a ‘circle,’ as something which the sublunary figures tend
to resemble, or more importantly, as the criterion by which we call an
imperfect sublunary ‘circle,’ roughly, a circle.
Grunebaum was also interested, since McEvoy is referring to INjustice, to
the moral vs. the legal usages of ‘justice’ (surely ‘just’ has only ONE
sense). But still, we had Socrates versus Thrasymachus in Plato’s Republic
arguing for hours as to whether so-called the ‘legal’ side to justice was
or was not prior to the ‘moral’ side to justice. For the record, I append
here, a few references to legal reasoning that may pertain to (i) and (ii)
above.
Cheers,
Speranza
Alexander, L., ‘The Banality of Legal Reasoning’, *Notre Dame Law Review* 73.
Alexy, R., *A Theory of Legal Argumentation*, Clarendon Press, Oxford.
Becker, L., ‘Analogy in Legal Reasoning’, *Ethics* 83. Brewer, S.,
‘Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of
Legal Argument by Analogy’, *Harvard Law Review* 109. Bix, B., *Law,
Language, and Legal Determinacy*, Clarendon Press, Oxford. Burton, S., *An
Introduction to Law and Legal Reasoning*, 2nd ed., Boston: Little Brown.
Dickson, J., ‘Interpretation and Coherence in Legal Reasoning’ in*
Stanford Encyclopedia of Philosophy*. Grice, H. P. On the legal and the
moral (Socrates and Thrasymachus) In “Philosophical Eschatology”, Way of
Words. Grice, H. P. On the legal and the moral. In “Prejudices and
predilections. Grice, H. P. Aspects of reason. The John Locke Lectures.
Golding, M., *Legal Reasoning,* Peterborough, Ontario: Broadview. Hart,
H.L.A., ‘Positivism and the Separation of Law and Morals’, *Harvard Law
Review*, 71. Hart, H.L.A., *The Concept of Law*, 2nd edn., with a
postscript edited by P.A. Bulloch & J. Raz, Clarendon Press, Oxford. Kelsen,
H., *The Pure Theory of Law*, 2nd edn. trans. M. Knight, University of
California Press, Berkeley, Ca. Levy, E.H., *An Introduction to Legal
Reasoning*, Chicago: University of Chicago Press. Marmor, A. (ed.), *Law
and Interpretation*, Clarendon Press, Oxford. MacCallum, G.C.,
‘Legislative Intent’ in R.S. Summers (ed.), *Essays in Legal Philosophy*,
Blackwell, Oxford. MacCormick, D. N., *Legal Reasoning and Legal Theory*,
Clarendon Press, Oxford. MacCormick, D. N. ‘Legal Reasoning and
Interpretation’ in E. Craig (ed.), *Routledge Encyclopedia of Philosophy*,
London: Routledge Peczenik, A., *On Law and Reason*, Kluwer, Dordrecht. Raz,
J., ‘Reasoning With Rules’, *Current Legal Problems*, Oxford University
Press, Oxford, 54. Sartorius, R., ‘The Justification of the Judicial
Decision’, *Ethics*, 78. Sherwin, E., ‘A Defence of Analogical Reasoning
in Law’, *University of Chicago Law Review* 66. Stone, J., *Legal System
and Lawyers' Reasonings*, London: Stevens. Weinreb, L., *Legal Reason:
The Use of Analogy in Legal Argument*, Cambridge University Press,
Cambridge.
palma, apgs
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