Crime & Federalism

What's one book I should read every pre-law student should read?  It's a tough question, since the student probably doesn't want to hear you say, "Atlas Shrugged," or "Das Kapital." Chances are, the student wants something that will give her the "big picture," and perhaps even provide her a competitive advantage.

Kerr suggested Glannon's book on Civ Pro. I think that's too narrow, since the book only covers Civ Pro.  If we looked at from a meta level, it does tend to illustrate how legal rules as such apply to the facts as such.  But it's not explicit enough.

I agree that Hayek is a good choice, since its explanation of spontaneous order demonstrates the wisdom of the common law method.  The ship moves slowly, which is good, since it keeps us clear of icebergs.

I also think An Introduction to Legal Reasoning is brilliant.  Sure, it's dense, but it's not as bad as Hegel.  It's valuable because it focuses on the evolution of The Law by using discrete legal issues.  Common law judges address narrow issues.  The law moves incrementally, as Levi demonstrates.  One doesn't ask, up in the air, e.g., whether a seizure was legal.  Courts examine precedent and look for analogous cases.

Rather, one digs for the deeper issue, say, by asking whether a reasonable person in the defendant's position would have felt free to leave.  Then we dig up every case to determine when a person felt free to leave, and when the person wasn't free to leave.  Where do our facts fit in this spectrum of cases?  This seems simple, but it took me about two years to figure out.  Intro helped me get there.

Still, since I can only recommend one book, I must suggest Ruggero Aldisert's Logic for Lawyers. It's heavy lifting.  (And try to find a used one, since a new one is expensive.)  But, sadly, it's necessary: most students are not trained in either formal or informal logic, and fewer still have been trained in the intersection of the common law and informal and formal reasoning.  Odds are that Logic for Lawyers will help everyone. Even someone with instruction in logic will benefit from the book.  Aldisert's application of categorical syllogisms to common law cases is not just enlightening, but life changing.   

According to Aldisert, every case contains a syllogism.  We have a major premise (the broad law), minor premise (our facts) and a conclusion (the application of law to facts).  If our syllogism is fallacious, chances are, so is our argument.

Lawyers, unlike logicians, must prove the argument's premises.  The law isn't always clear on some points, and so we always don't get, "All men are mortal" as our major premise, or "Socrates is a man" as our minor premise.  But many legal rules are clearly established, and so Logic for Lawyers gives us an outline to follow.  First, find those well-established rules.  Second, find out how these rules apply to your case facts.  Third, create a syllogism from them.

Of course, sometimes judges (and Justices of the Supreme Court) disregard logic, as they did in  Morrison v. Olson. 

The issue in Morrison v. Olson was whether non-executive branch officials could prosecute crimes.  The majority held that separation of powers notwithstanding, a non-executive official could exercise prosecutorial power.  Scalia used a categorical syllogism to show how dishonest the majority's opinion was.  Justice Scalia wrote (emphasis added):

To repeat, Article II, 1, cl. 1, of the Constitution provides:  "The executive Power shall be vested in a President of the United States."

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power [major premise].  It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? [minor premise] (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

Thus, Scalia's syllogism can be summed up:

All executive power is vested in the Executive Branch.
All prosecutions involve executive power.
Therefore, all prosecutions are vested in the Executive Branch.

Period.  The conclusion that the Independent Counsel Statute was unconstitutional must   follow.  Scalia's argument was airtight.  That the majority refused to accept this conclusion demonstrates that Morrision v. Olsonis an example of judicial activism: it was politics, not law. (Incidentally, isn't laying out one's argument in this manner much more persuasive than screaming like a child when others disagree?  In Morrison, the cogency of Scalia's arguments thrashed the majority's opinion more than any sharp rhetoric could have.)

Rather than continue rambling, let me ask for your suggestions.  What's one book every law student should read?