Sure, let's break it down in simpler language:

When you go to law school, they don't just teach you a bunch of rules to memorize or how to stand in a
courtroom. They say they're teaching you how to "think like a lawyer." This means they want you to be
good at arguing, making decisions, and using legal reasoning.

Legal reasoning is like a special way of thinking that lawyers use. It's not just about knowing the rules
(though that's important too) or practical skills you'll use in your job. It's about being really good at
arguing and making decisions the way lawyers do.

But here's the thing – is there really something unique about how lawyers think? Sure, some lawyers are
better at it than others, just like some doctors or politicians are better at their jobs. But is there a special
kind of thinking that only lawyers have?

That's the big question. Some say yes, there is a distinct way lawyers think, and that's what law schools
aim to teach. They say it's not just about the rules or practical skills, but about this special kind of legal
reasoning. Others might argue that good thinking is important in many professions, not just law.

So, when they talk about "thinking like a lawyer," they mean being great at legal reasoning – the kind of
thinking that sets lawyers apart.

Law schools don't just teach students to think better. They want to teach them to think differently, not
like regular people or other professionals such as scientists or bankers. Back in 1628, Lord Coke argued
that there's a special kind of reasoning in law, different from regular reasoning. Now, he might have been
wrong, and legal reasoning could just be regular reasoning – sometimes good, sometimes bad. But many
lawyers and law schools have believed for a long time that legal reasoning is distinct. Even if this belief
might be wrong, it's been around for so long that we shouldn't ignore the possibility.

Being a lawyer doesn't automatically mean you think differently because law is a separate profession.
Electricians and carpenters have their own knowledge, but we don't say they "think" like electricians or
carpenters. It might sound strange to say someone "thinks like a lawyer," but law schools and most
lawyers believe there's more to being a lawyer than just knowing legal stuff. They think there's a special
way of thinking that sets lawyers apart. It's not just about knowing the law; it's about something else
that makes lawyers unique.

Understanding what it means to think like a lawyer isn't straightforward. It's easier to say what it's not
than to pinpoint exactly what it is. This complexity has led to skepticism about whether law truly has a
unique way of thinking. Legal Realists, like Jerome Frank and Karl Llewellyn, argued that lawyers and
judges approach problems no differently than other decision-makers. Some political scientists studying
the Supreme Court also claim that Justices' personal beliefs have a more significant impact than
traditional legal reasoning.

Psychologists looking at how lawyers and judges think often focus on common human flaws in decision-
making, not unique legal reasoning methods. Even way back in the 19th century, Jeremy Bentham
criticized the legal profession, suggesting that lawyers and judges, despite their titles, are just humans
with both strengths and weaknesses. These challenges to the traditional view of legal reasoning
emphasize that lawyers and judges are human, and their methods are more influenced by human
qualities than by a distinct way of legal thinking.

Reality Check for Legal Reasoning: The skeptics of legal reasoning don't think lawyers and judges are
lying, but they believe that what lawyers and judges think they're doing often hides a deeper reality. In
this reality, policy choices and non-legal factors might play a more significant role in legal arguments and
outcomes than the participants realize.

1. Importance of Skepticism: If this skeptical view is correct, legal reasoning might not be as unique
and crucial as many believe. But if the traditional idea is right, and lawyers and judges indeed
have distinct ways of thinking, it's essential to figure out what those unique characteristics and
methods are. So, we need to explore how much of lawyers' and judges' reasoning is due to their
training and roles and how much is just because they are human.

2. Defining Legal Reasoning: The concept of legal reasoning is a debated idea suggesting that
lawyers have specific ways of approaching problems and making decisions that others don't. But
what exactly are these ways? Some argue that lawyers excel in dealing with facts, evidence, and
understanding the full context of events. However, it's not clear if these skills are more critical
for lawyers than for successful detectives, historians, psychiatrists, or anthropologists.

In essence, the question is whether legal reasoning is truly unique or if it shares commonalities with
other professions and human thought processes.

The author explores the qualities commonly associated with effective legal reasoning and argues against
setting unrealistic aspirations for its distinctiveness. While acknowledging the importance of traits like
analytical thinking, empathy, and open-mindedness, the author questions whether these attributes are
unique to the legal profession. The chapters in the book delve into reasoning forms traditionally linked
with the legal system, such as rule-based decision-making, reliance on authoritative sources, respect for
precedent, sensitivity to burdens of proof, and awareness of decision-making jurisdiction.

The author emphasizes that legal reasoning should not be viewed as a closed system, unlike games like
chess. In chess, every move is explicitly defined by the rules, whereas legal argumentation involves a
broader range of considerations and interpretations. The author encourages a realistic assessment of
legal reasoning's distinctiveness, cautioning against overstating its uniqueness compared to other fields.

Legal decision-making is not solely confined to the explicit rules of law. The author points out that law
relies on various skills beyond those strictly defined as legal. Moreover, the complexity of the human
condition introduces unforeseeable challenges to legal processes. Predicting the future and determining
how to navigate it remains an imperfect endeavor. In the face of unexpected developments, law often
needs to step outside established rules to effectively serve society. While law possesses tools for
adapting to a changing world, the idea of it being a completely closed system, where existing rules
dictate all outcomes, is unlikely to accurately represent the dynamic nature of legal practice.

Law is not a closed system, and the ways lawyers reason are not entirely unique to the legal field. While
there may be little overlap between certain things, like Estonian and English languages or literary
criticism and multivariate calculus, it's unrealistic to claim that the distinctive forms of legal reasoning
are exclusive to the legal system.
For instance, relying on written rules is common not just in law but also in various aspects of life.
Everyone, including bureaucrats, bankers, and ordinary individuals, follows rules such as speed limits
posted on signs. The legal system often places importance on precedent, doing things the same way
they've been done before. However, this type of thinking isn't unique to law; parents often encounter
similar arguments from younger children who want to do something based on what an older sibling did
at the same age.

Authority-based reasoning, where the source of a directive is seen as a justification for following it, is
another characteristic of the legal system. But this is not exclusive to law either. Families, for example,
also operate on authority-based reasoning, as parents may use phrases like "Because I said so!" when
explaining a decision to a stubborn child. In essence, while legal reasoning has its specific characteristics,
these are not entirely distinctive to the legal field and can be found in various aspects of human
existence.

Even though the ways legal reasoning operates are commonly found outside the legal realm, there might
be a concentration of these forms of reasoning within the legal system. Despite their existence in our
decision-making processes, it's crucial to recognize that these methods are peculiar in a particular way.
What makes them peculiar is that each dominant characteristic of legal reasoning and argumentation
can be viewed as a path toward a decision that may not align with the best overall decision for a given
situation.

For example, when we follow a speed limit, we might be driving at a speed different from what we
believe is optimal given the traffic, conditions, and our own skills. Similarly, adhering to precedent
becomes interesting when it leads to a decision different from what we would have made independently.
The parent granting the same privileges to a younger child based on what an older child received feels
the influence of precedent only when there's a good reason to treat them differently. Being constrained
by precedent becomes a deviation from what seemed to be the right decision.

Obeying or following an authority implies doing something different from what we would have chosen
independently. A soldier following orders might act differently if allowed to make their own decision, just
as an obedient student or child suppresses their desires to do something else.

Understanding that these common forms of reasoning and decision-making, while widespread, are
somewhat peculiar—often leading to outcomes contrary to the decision-maker's initial preference—
helps us grasp why they are substantially present in the legal system. This prevalence in the legal system,
compared to our overall decision-making, forms the basis for a plausible assertion that there is a
distinctive concept of legal reasoning. If these counterintuitive forms of reasoning, which often result in
outcomes different from what one might expect, are prevalent in law, it strengthens the argument for
the existence of legal reasoning.

If methods of reasoning that often lead to outcomes different from what would otherwise seem to be
the best overall decision are prevalent in law but more exceptional elsewhere, it may support the idea
that there is a distinct concept of legal reasoning or "thinking like a lawyer." In this case, it becomes
crucial for lawyers and judges to excel in these methods, and law schools must teach their students
accordingly. It's important to note that while these reasoning methods are not unique to the legal
system, they play a significant role in legal argument and decision-making alongside more "ordinary"
reasoning methods.

Legal reasoning methods are not isolated; they exist elsewhere, and ordinary reasoning is also prevalent
in legal processes. However, if certain reasoning methods are not only widespread but particularly
concentrated and dominant in legal argument and decision-making, then the claim that there is
something unique called legal reasoning gains validity.

The seemingly counterintuitive methods of law are not merely historical quirks; they arise from law's
inherent generality. Even though legal disputes involve specific individuals with specific issues, the law
often treats these particulars as members of larger categories. Rather than aiming for the best result in
each case in a purely particularistic and contextual manner, the law often seeks outcomes that are right
for all or most cases within a given category.

This approach is rooted in the understanding that it's sometimes better for the law to tolerate a specific
harm in one case than to adopt a rule that would seem correct for that case but lead to wrong results in
many others. Lord Coke's perspective, expressed as "It is better saith the Law to suffer a mischiefe (that
is particular to one) than an inconvenience that may prejudice many," highlights this principle.

Coke's lesson is reflected in the traditional Socratic dialogue between students and teachers in the first
year of legal education. The focus is not just on the specifics of individual cases but on broader principles
and categories, aligning with law's goal of ensuring the right outcomes for larger groups of cases rather
than pursuing a purely individualistic approach. In law school, students are often engaged in a distinctive
form of questioning known as the Socratic method. After summarizing the facts of a reported case, a
student is asked to provide their opinion on what the correct outcome should be. Typically, the student
offers what they believe to be the fairest or most just resolution between the opposing parties. The
professor then challenges the student's proposed rule by presenting hypothetical examples that aim to
show the rule might lead to less just or less fair outcomes in other cases.

This Socratic inquiry isn't confined to law school; it's also a common form of questioning in appellate
courts. Appellate judges, viewing themselves as establishing rules for future cases, often inquire about
the potential impact of advocated rules in various hypothetical situations. Similar to the law school
setting, judges pose these hypothetical scenarios because they believe that what may seem right initially
in a particular dispute may not lead to the best outcome when applied in a broader context.

The purpose of this Socratic method is to teach students and advocates that the best legal outcome
might not align with the optimal outcome for the immediate dispute. Instead, it emphasizes law's
willingness to reach a result that may differ from what is optimally fair or wise in a particular case. A
notable example is the case of United States v. Locke, where the Supreme Court considered a land claim
renewal rejected due to a statutory wording error. Despite recognizing the error, the Court focused on
the broader question of whether it should rewrite flawed statutes, prioritizing the application of a
general rule over the particulars of the case.

This approach in law reflects a concern for the full range of applications of a general rule, often at the
expense of immediate fairness or justice in a specific case. When describing the Rule of Law versus the
rule of men, the traditional idea is that the Rule of Law is cautious of individual judgment, being
reluctant to rely too heavily on the unchecked judgments of individuals. Therefore, even if a judge
perceives a rule or precedent as incorrect, the traditional understanding expects adherence to it.

This passage is about how the legal system, in its way of questioning and making decisions, may not
always result in the most fair or wise outcome for a specific situation. It gives an example from a case
called United States v. Locke where a land claim got rejected because of a mistake in the law's wording.
Even though everyone could see the law was wrong, the judges chose not to fix it because they were
worried it might make a habit of changing federal laws. In the legal world, the main focus is often on
general rules and principles rather than fixing one case, even if it seems unfair. The Rule of Law, different
from the rule of men, means that the legal system relies on clear rules and past decisions to avoid relying
too much on personal opinions. This might mean judges have to follow a rule or decision even if they
think it's wrong, as it fits with the traditional way of looking at the law. It's like sticking to the plan, even
if the plan has a mistake in it.

This passage is comparing the idea of "legal reasoning" to talking about unicorns. You know, people can
describe unicorns even though they aren't real. In the same way, we can talk about legal reasoning, but it
might not happen a lot. It also mentions self-sacrificing heroism, which is like when someone does
something really brave for others. Even though we can point to examples of this heroism, it doesn't
happen all the time.

The point here is that just because we can talk about legal reasoning and give examples doesn't mean it's
a huge part of what lawyers and judges do every day. If we see some cases where legal decisions are
influenced by past decisions or rules, it doesn't mean this happens all the time in the legal world. The
passage is saying that even though we can see some instances where legal reasoning is used, it doesn't
mean it's a common thing.

However, if we can find many real examples of legal reasoning, then those who say it's rare or mostly
made up need to prove their point. So, it's like saying if we can show that legal reasoning happens a lot,
then those who doubt it must explain why. The passage is not saying that legal reasoning is the only
thing lawyers and judges do, but it's suggesting that it exists and is common enough to be called
"thinking like a lawyer." It's a bit like saying, "Hey, there are examples of legal reasoning out there, so it's
a real thing!

This passage talks about whether legal reasoning is a good thing, even if we agree that it exists. The
author suggests that maybe following the Rule of Law, which means sticking to rules and precedents, is
not necessarily a good idea. They bring up Plato, who had this idea of a perfect society ruled by wise
philosopher-kings. In that society, it might not make sense for these wise leaders to be bound by rules or
past decisions that seem wrong.

Even though we don't live in Plato's perfect society, the passage says that legal reasoning and the Rule of
Law can still be a challenge. In the real world, with real leaders and their flaws, legal reasoning might
sometimes get in the way of making wise decisions. The passage points out that the Rule of Law could be
a hindrance to good policies and the sensible judgment of leaders, even if they're not perfect.

The author acknowledges that evaluating law and the Rule of Law is a big task and not the focus of this
book. Instead, the book aims to identify, describe, and analyze the different ways of legal reasoning. It
recognizes that deciding whether these ways are worth having, considering their advantages and
disadvantages, is a complex question best left for other discussions.

In simpler terms, the passage is questioning whether following rules and legal reasoning is always a good
thing, especially when dealing with leaders and their decisions. It brings up the idea that sometimes,
sticking strictly to the rules might not lead to the best outcomes. The author suggests that understanding
and evaluating legal reasoning is essential but leaves the bigger question of whether it's always
beneficial for other times and discussions.

REASONING

1. Rule-Based Reasoning:

 Explanation: Lawyers and judges often rely on established rules or laws to make
decisions.

 Example: If there's a law that says stealing is a crime, and someone is accused of
stealing, the judge would use rule-based reasoning to determine whether the accused is
guilty.

2. Analogical Reasoning:

 Explanation: This involves comparing the facts of the current case to similar situations
from past cases.

 Example: If a court previously ruled that breaking into a house with the intent to steal is
a crime, and the current case involves breaking into a car with the same intent, the judge
might use analogical reasoning to apply the established precedent.

3. Policy-Based Reasoning:

 Explanation: Decision-making based on what would lead to a socially or economically

desirable outcome.

 Example: If there's a law about environmental protection, a judge might interpret it in a

way that promotes cleaner air and water, aligning with the policy of preserving the
environment.

4. Custom-Based Reasoning:

 Explanation: Relies on societal norms and expectations.

 Example: In a dispute over property boundaries, the judge may consider customary
practices in the community to determine where property lines are typically understood
to be.

5. Principle-Based Reasoning:

 Explanation: Decision-making guided by moral or political principles.

  Example: If a case involves freedom of speech, a judge might use principle-based
reasoning by considering the importance of this democratic principle and ruling in favor
of protecting the individual's right to express their opinions.

6. Inferential Reasoning:

 Explanation: Deciding based on what seems most reasonable given the available
evidence.

 Example: In a criminal trial, if there are fingerprints at the crime scene matching those of
the accused, the judge might use inferential reasoning to conclude that it's likely the
accused was present at the scene.

In a courtroom, judges and lawyers often use a combination of these types of reasoning to arrive at well-
rounded and just decisions. They weigh legal principles, precedent, social considerations, and the
specifics of each case to ensure a fair and reasoned judgment.

RULE-BASED REASONING

Rule-based reasoning is the starting point for legal analysis. It justifies a result by establishing and
applying a rule of law. It asserts, “X is the answer because the principle of law articulated by the
governing authorities mandates it.”1

RULE-BASED REASONING

Harold Collier should not be bound by the contract he signed because he isa minor, and A v. B establishes
that minors do not have the capacity to execute binding contracts.

Example of Rule-Based Reasoning

“[T]he only lawful means to dispossess a tenant who has not abandoned nor voluntarily

surrendered . . . is by resort to judicial process . . . . Applying [this principle of law] to the

facts of this case, we conclude, as did the trial court, that because Wiley failed to resort to

judicial remedies against Berg . . . , his lockout of Berg was wrongful as a matter of law.”

Berg v. Wiley, 264 N.W.2d 145, 151 (Minn. 1978).

EXERCISE 5-1

Rule-Based Reasoning

Your client owns rental property. She wants to know whether she can refuse to rent to men. Read the
following statute and write one paragraph that uses rule-based reasoning to answer her question.
It shall be unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate
for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of
race, color, religion, sex, familial status, or national origin. 42 U.S.C. § 3604(a) (2000).

Certainly! Let's break down the rule-based reasoning in detail for your client's question about refusing to
rent to men:

Rule-Based Reasoning: The relevant statute in question is 42 U.S.C. § 3604(a) (2000). This law explicitly
prohibits discrimination in the sale or rental of dwellings based on certain protected characteristics. The
key phrase is, "It shall be unlawful to... refuse to rent... a dwelling to any person because of race, color,
religion, sex, familial status, or national origin."

Explanation: The law clearly states that it is illegal to refuse to rent a dwelling to any person based on
their sex. In legal terms, this means your client cannot discriminate against individuals solely because
they are men. Rule-based reasoning, in this context, asserts that the answer to your client's question is
guided by the principle articulated in the law: she cannot refuse to rent to men based on their sex.

Detailed Response: According to 42 U.S.C. § 3604(a) (2000), it is explicitly prohibited to discriminate in

the rental of dwellings based on various factors, including sex. The law clearly states that refusing to rent
to any person because of their sex is unlawful. Therefore, as your legal advisor, I must inform you that
you cannot refuse to rent to men solely based on their sex. The rule-based reasoning here is rooted in
the principle articulated by the governing law, and it mandates compliance with anti-discrimination
provisions in housing.

ANALOGICAL REASONING

Analogical Reasoning in Simple Terms: Analogical reasoning in law is like looking at past situations and
comparing them to the current one. It's saying, "This is the answer because it's similar to what
happened before," or "This is not the answer because it's different from what happened before."

Example in Easy Language: Imagine someone, like Harold Collier, is in trouble for breaking a contract at
the age of sixteen. Lawyers might look at a similar case where another sixteen-year-old wasn't held
responsible for a contract. If the situations are alike, they might say, "Harold should also not be held
responsible because it's just like the case of A v. B."

If there are differences, they might say, "Even though A v. B had a certain result, it doesn't apply here
because the details are different."

Detailed Example: Let's say in the past, a person named Harold, who was also sixteen, wasn't held
responsible for a contract they signed. Now, your client, Harold Collier, is in a similar situation. Using
analogical reasoning, if the details match (both are sixteen and signed a contract), it might be argued,
"Harold Collier should not be bound by the contract, just like in A v. B, where the defendant, being
sixteen, was not bound."

However, if there are differences, like in another case, C v. D, where a minor was held responsible for a
contract, but that minor had lied about their age, the argument might be, "Even though C v. D had a
different outcome, it doesn't apply to Collier because the situations are not the same. In C v. D, the
minor deliberately lied about being nineteen, which is not the case with Collier."

So, analogical reasoning involves looking at similarities or differences between cases to decide what
should happen in the current situation.

Analogical reasoning involves comparing two situations that are similar in certain aspects and concluding
that because one situation had a particular outcome, the other should have a similar outcome. In the
example you provided, the court is using analogical reasoning to make a legal decision.

Fahmie's Case: Imagine Fahmie has a piece of land with a drainage pipe called a culvert. Fahmie wants to
make some improvements to the land but doesn't know there's a problem with the culvert. Fahmie
applies for permission to make these improvements. During the application process, they discover the
issue with the culvert (a drainage problem), and Fahmie is told to fix it.

Frimberger's Case (Current Case): Now, in the current case (Frimberger v. Anzellotti), it's like a similar
story. There's a property with a wetlands area. Back in 1978, someone filled this wetlands area without
getting the right permission and broke some state laws. The current owner of the property,Anzellotti,
didn't know about this problem until they wanted to do more work on the land.

Analogical Reasoning: Here's where it gets interesting. The court is saying, " Hey, these two situations
(Fahmie's and Frimberger's) are alike in important ways." In both cases, the property owner didn't know
about a problem until they tried to make things better. So, the court thinks, "If we made Fahmie fix the
culvert issue, we should make Anzellotti fix their wetlands problem too."

In Simple Terms: The court is using Fahmie's story as a guide for deciding what to do in Anzellotti's
situation. It's a bit like saying, "Well, we handled a similar problem this way before, so let's do something
similar now." It's a way of being fair and consistent in how they make decisions about different cases that
have similar issues.

EXAMPLE

Argument Against Validity of Martha's Claim:

In James's case, Martha is claiming ownership of the dining room table and chairs based on a thank-you
note from James's mother, dated six months before her death. Analogically reasoning, we can draw
parallels to the case of Elder v. Fisher, where Janice Elder attempted to gift a ruby ring to her sister
Darlene. In Elder, the court ruled that a valid gift required actual physical delivery where possible, and
since Janice died before physically handing over the ring, the gift was deemed invalid. Similarly, Martha
does not have evidence of actual physical delivery of the dining room table and chairs, and relying solely
on a thank-you note may not meet the legal standards set by Elder v. Fisher. Therefore, based on this
analogical reasoning, Martha's claim to the dining set may not be valid.

Pointing Out Differences to Support Martha's Claim:

However, it's crucial to recognize the differences between Elder v. Fisher and Martha's situation. In Elder,
the donor, Janice, explicitly stated that Darlene would receive the ruby ring and set a specific time for the
transfer. Martha, on the other hand, holds a thank-you note expressing gratitude for past assistance but
lacks the explicit language about a gift and a specified time for transfer. This distinction could be pivotal,
as Martha's claim does not precisely align with the circumstances of the Elder case. Additionally, the
nature of the gift (a dining room table and chairs) differs significantly from a valuable item like a ruby
ring, and legal standards for the validity of a gift may vary based on the nature of the property involved.
Therefore, the differences between Martha's situation and the specifics of Elder v. Fisher could be used
to argue that Martha's claim should not be dismissed solely based on the precedent set by Elder.

Policy-Based Reasoning
Policy-Based Reasoning Explained in Simple Terms:

Policy-based reasoning in the legal context is like choosing an answer that is best for everyone in society.
It's saying, "This is the answer because it will lead to good results for our community."

Example in Easy Language:

Imagine a situation where a person, like Harold Collier, who is only sixteen, signed a contract. Policy-
based reasoning would say he shouldn't be held responsible for it. Why? Because at that age, people
might not fully understand the consequences of important decisions. If we let minors enter into
contracts, there's a higher chance of the contracts not being fulfilled (defaults), which can harm the
economy by reducing productivity.

Detailed Example:

Let's say Harold Collier, who is only sixteen, signed a contract. Using policy-based reasoning, someone
might argue that Harold should not be held accountable for the contract. Why? Because at such a young
age, individuals might not be mature enough to grasp all the consequences of significant decisions.
Allowing minors to enter into contracts might lead to defaults, where they can't fulfill their obligations.
This, in turn, can harm the economy by decreasing productivity levels.

So, policy-based reasoning is about choosing answers that not only consider the individuals involved
but also look at the broader impact on society to encourage positive
outcomes.

Policy-Based Reasoning

Your client signed a one-year lease for an apartment, but before he moved in,

he lost his job. Without the job, he was unable to afford the rent, so he

notified his landlord that he would not be able to take the apartment after all.

The landlord has refused to rent the apartment to any other tenant and is

holding your client responsible for the entire year’s rent. Write a paragraph

setting out a policy-based argument in favor of your client. Then switch sides

and write a paragraph setting out a policy-based argument in favor of the

landlord. For both paragraphs, you can consider both the economic effects
and the social effects of a rule that allows landlords to do what this landlord

is doing.

Policy-Based Argument in Favor of the Tenant:

From the perspective of tenant rights and fairness, a policy-based argument supports the tenant in this
case. Unforeseen circumstances, such as job loss, can disrupt an individual's ability to meet financial
obligations, including rent. Enforcing a rule that holds tenants responsible for the entire lease term, even
when they face unexpected financial setbacks, may lead to severe economic consequences for
individuals who find themselves in difficult situations. Additionally, from a social standpoint, promoting
a more lenient approach could contribute to a more compassionate and understanding rental
environment. Allowing tenants to terminate leases in cases of genuine financial hardship fosters
economic resilience and helps maintain a healthy balance between landlords' interests and the welfare
of tenants during challenging times.

Policy-Based Argument in Favor of the Landlord:

From the landlord's side, it's about making sure things stay steady in the renting world. Picture someone
who rents out a house. They count on getting rent regularly to take care of the property, pay off loans,
and manage different costs. If tenants can easily cancel their leases without facing consequences, it
could mess up the landlord's money situation. Finding new tenants quickly isn't always easy, and this
uncertainty can make it hard for landlords to handle their property and money matters. To make
landlords feel more secure about renting out homes, a rule that makes tenants responsible for the whole
lease time can help keep things balanced and dependable in the renting world. It also stops tenants from
canceling leases without good reason, making sure everyone takes their renting promises seriously and
keeping the housing market stable.

The difference between policy and principle . Principle are more social in nature and more informal in
their orientation AND NATURE . Nature tells what kind of thin it is and orientation tells about approach .
Govt do not decide ki principle kya hai .

PRINCIPLE-BASED REASONING –
If something is not legally binding
for Sellers Disclosing Home Defects:

In our society, we care a lot about being honest and treating each other fairly, especially when it comes
to buying and selling homes. Right now, in our area, sellers don't have to tell buyers about problems in
the house unless they specifically say something about how good it is. But imagine you buy a house, and
then you find out the roof is leaking, and the seller knew but didn't say anything. That doesn't feel fair.
So, we should think about changing the law to make sellers share important problems they know about,
even if they didn't say much about the house's quality. This change is not just about helping buyers; it's
about being fair and honest in how we deal with each other. Making sellers tell buyers about big issues
they're aware of will make our home-buying system more trustworthy and fair for everyone involved. It's
about keeping things right and decent in our community. Therefore, it makes sense to create a rule that
makes sellers let buyers know about significant problems they are aware of, supporting principles of
honesty and fairness that we value in our society.

Question –
Your client bought a house and soon discovered that the roof leaked. The
seller had not made any statement to your client about the roof, but your
client believes the seller knew about the problem. Up until now, your
jurisdiction has not required a seller to tell a buyer about problems like this
roof, so long as the seller makes no affirmative statement about the quality of
the roof. You want to argue that your jurisdiction should impose a duty on
sellers to disclose significant defects of which they are aware. Write a
paragraph using principle-based reasoning to argue in favor of this change in

the law. You can consider principles like honesty and fairness .
Answer –

1. Fairness and Transparency:

 Principle: Our community values fairness and transparency in transactions, especially

significant ones like buying a home.

 Argument: Requiring sellers to disclose significant defects, even without explicit

statements about quality, aligns with the principle of fairness. It ensures that buyers are
aware of potential issues, creating a more balanced and transparent real estate market.

2. Honesty and Trust:

 Principle: Honesty is a fundamental principle in our society, crucial for building trust and
maintaining ethical standards.

 Argument: Making it mandatory for sellers to disclose known defects contributes to

honesty in property transactions. It fosters trust between buyers and sellers, as buyers
can rely on accurate information and make informed decisions about their investment.

3. Protecting Buyers:

 Principle: Protecting individuals from unforeseen harm is a guiding principle in legal and
ethical frameworks.

 Argument: Imposing a duty on sellers to disclose significant defects safeguards buyers

from purchasing properties with concealed issues. This principle-based change in the
law ensures that buyers are not unknowingly burdened with substantial problems after
the purchase, promoting a sense of security and well-being.
 4. Balancing Power Dynamics:

 Principle: Equality and fairness are essential principles in maintaining balanced power
dynamics in transactions.

 Argument: Requiring sellers to disclose known defects rebalances the power dynamics
between buyers and sellers. It prevents sellers from taking advantage of information
disparities and promotes a more equitable relationship, where both parties have access
to critical information about the property.

5. Promoting Long-Term Community Trust:

 Principle: Long-term community trust is crucial for the stability and health of our
neighborhoods.

 Argument: Implementing a duty on sellers to disclose defects contributes to the long-

term trust within our community. It signals a commitment to ethical practices in real
estate transactions, fostering a positive reputation for the housing market and
encouraging community members to engage in fair and open dealings.

Custom-Based Reasoning in Simple Terms:

Customs are not codified. Different people, different customs .

Custom-based reasoning in law involves looking at common practices and

expectations in society to make an argument. It's like saying, "Even if something seems
okay, if it doesn't match what people usually expect, it might not be acceptable."

Application to the Scenario: Your client signed a contract to buy a house with a
condition that the seller should provide a "marketable title." This means a title that a
reasonable person would be willing to accept and pay a fair value for.

Now, the house extends over the lot line by one foot, and the seller claims ownership
under adverse possession, a legal doctrine that allows someone to claim ownership of
land if they have used it openly and continuously for a specified period.

Custom-Based Reasoning Argument: Even if, based on research, the seller's claim of
adverse possession appears to be valid, custom-based reasoning could be used to
argue that this might not satisfy the definition of "marketable title." In the customary
expectations of property transactions, buyers generally expect clear and uncontested
ownership backed by the recorded title.

The custom or norm in real estate transactions is to have a title that is based on the
recorded history of ownership, not one acquired through adverse possession. So, even if
legally the seller may have a valid claim, the customary expectation in property
transactions is for a clear and unambiguous title based on the recorded history.
Deviating from this customary practice could raise concerns for a reasonable buyer and
may not be considered a marketable title.

In essence, the argument is that even though adverse possession may legally transfer
ownership, it might not align with the customary expectations in real estate transactions,
making the title not fully "marketable" as defined in the contract.

Imagine your friend, Harold, who is not yet a grown-up, signed a paper saying he will
buy a house. Now, the person selling the house says it's okay because they own a tiny
part of the land under the house. But here's the thing: normally, people don't make
these kinds of deals with kids directly; they talk to the kid's parents or someone
responsible.

Example for Kids: It's like when you want to buy a toy. Usually, you ask your parents to
help, right? That's because grown-ups know more about these things, and it's not fair to
expect kids to understand everything about buying stuff.

Now, let's pretend you want to buy a cool game, and the person selling it says, "I own
this game because I've had it for a long time." But, if everyone usually buys games that
have a clear history and not ones claimed by someone having it for a long time, you
might say, "Even if the seller's claim is true, it's not what people usually expect when
they buy games."

So, in Harold's case, we can use custom-based reasoning to say, "Even if the seller owns
a bit of the land, it's not what people usually expect when they buy houses. Usually, they
want a clear history of who owned it, not someone saying they've had it for a long time.
So, maybe Harold shouldn't be stuck with the deal."

1. Marriage Customs:
 If a dispute arises regarding marriage rituals or customs, the court might
consider local customs and traditions in determining the validity of the
marriage.
2. Land Tenure Practices:
  In cases related to land disputes, especially in rural areas, courts may take
into account customary land tenure practices that are prevalent in a
particular region.
3. Religious Practices:
 Courts might refer to established religious practices and customs when
resolving disputes related to religious institutions or rituals.
4. Family Succession:
 In inheritance disputes, the court may consider customary family
succession practices to determine the rightful heir or beneficiaries.
5. Community Disputes:
 Custom-based reasoning can be relevant in resolving conflicts within
specific communities where customary norms play a crucial role in social
and familial matters.
6. Local Trade Practices:
 In commercial disputes, especially in local markets, courts may take into
account customary trade practices that are recognized and accepted
within a particular community.
7. Caste-Based Practices:
 In certain legal matters involving caste-related issues, courts might refer to
customs prevalent within specific castes to understand the social context
of a dispute.

Theory of Knowledge: