• This book is about theoretical disagreement in law” – pg 11 Trying to see what this is all about.

“I am concerned with issue of law, not reason judges may have for tempering their statements of what it is.” It centers on judges in black robes.

  • Critics may say project is misapplied and incomplete and obscure. But, “theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse.”
  • “This book take up the internal participants point o view, tries to grasp argumentative character of our legal practice. “ “We will study formal legal argument from judge’s point of view.” Citizens and politicians also important, but judicial argument more explicit and more influential on legal discourse.


  • Let’s see how PF thesis distorts legal practice by looking at actual cases.
  • Elmer’s Case
    • Elmer murdered grandfather in hope of getting will he knew he left for him. Caught, put in jail. Residuary legatees were grandfathers daughters, they sued administrator of will, demanding that property go to them not Elmer. New York statutes of wills was silent.  Judges felt compelled by law, must give to elmer, but disagreed about what law actually was, what statute required when properly read.
    • How possible? Like a poem, we agree on literal words, but not the second sense. So judges disagreed on impact of words of statue on legal rights of elmer, and daughters because disagreed about how to construct real statute.
    • Dissenting Judge Gray: Proposed literal reading, must look at statute context-independent, voted for Elmer. Much to say for this, because we don’t know if grandfather changes mind, can’t substitute own opinion. Also, would be double punishment if Elmer, after jail, also looses inheritance.
    • Majority Judge Earl:
      • *“It is familiar canon that a thing which is within intention of makers of statute is as much within statute as if it were within the letter; and a thing in letter but not in intention, is not in the statute.”. And here, with murderers, legislators had no intention either way. Earl meant that statue doesn’t have any consequences the legislators would have rejected if they had contemplated it.
      • Also, must construct statute to make larger legal order coherent. Here – no one should profit from their own wrong.
    • *Comment: Most important point from case: dispute was not about whether follow law or adjust law. It was dispute about what the law was, about what the real statute really said.
  • The Snail Darter Case
    • Facts: Endangered Species act gave minister of interior special power to make sure nothing happens that endangers it. Conservationists convinced it to protect the snail darter, a fish of no importance, and stop a building project by TVA.   Tenessee Valley authority argued that because project substantially underway, act doesn’t apply and cited acts of Congress in support.
    • Chief Justice Warren Burger: found that dam must be halted. Said that when text is clear the Court has no right to refuse to apply it just because it believes the results silly. But rejected Earl’s principle about way in which congressional intention is relevant. “Not for us to speculate on whether Congress would have altered its stance had specific situation been anticipated.”   (bit like Gray, but less rigid)
    • Justice Lewis Powell: Courts should accept an absurd result only if they find compelling evidence that it was intended. (a bit like Earl’s, but substitutes common sense for principles of justice found elsewhere in law).
    • Comment: Again, they disagreed about the question of law; about how judges should decide what law is made by particular text enacted by Congress when congressmen had the kinds of beliefs and intentions both justices agreed they had in this instance.