`Discovery' in Legal Decision-Making

`Discovery' in Legal Decision-Making

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This book deals with a central problem throughout the legal profession -a solution to the problem is sought and reached in some basic form. At the centre of this prob- lematic is the question indicated by the title: "What is the nature of "discovery" in legal decision-making?" In the final chapter that problem and the solution reached will be seen to have ramifications throughout the entire field of legal practice and theory. However, the focus of the argument is maintained first to specify adequately the particular manifestation of the problem in a variety of legal fields and secondly to arrive at a precise basic solution to this range of problems. The presentation of the solution is not dictated by the norms of clarity and coherence, but by the dynam- ics of the struggle to reach the solution and by aspects of the problem available to various sub-groups within the legal profession -theorists, judges, arbitrators. So, I begin from a relatively familiar zone, discussions of discovery in legal theory before moving to more unfamiliar territory. This book is not a thorough survey of problems and writings on discovery. Rather, the strategic selection of problems and assessment of solutions across the first four chapters represents four aspects of the problem. Those chapters invite the reader to rise to the sense of occurrence of a single problem in a variety of contexts.
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Product details

  • Hardback | 171 pages
  • 162.6 x 241.3 x 20.3mm | 408.24g
  • Dordrecht, Netherlands
  • English
  • 1996 ed.
  • X, 171 p.
  • 0792339819
  • 9780792339816

Back cover copy

This book deals with a central problem throughout the legal profession - 'What is the nature of discovery in legal decision-making?' It begins by identifying fundamental problems about the nature of discovery, expression and introspection that emerge in the work of legal theorists and psychologists who have a reflective interest in the discovery process. Related problems are raised in analyses of the spontaneous efforts of an arbitrator and a judge to solve legal problems. The work of the Canadian philosopher and theologian, Bernard Lonergan, on 'insight' in non-legal fields is brought to bear on the problem. A plausible interpretation of various facets of discovery is provided. In face, the author offers a new context in which to examine discovery, expression, and justification. This is the first book to focus primarily on the discovery process in legal reasoning. It is essential reading for anyone - legal theorists, philosophers, psychologists, judges, lawyers and students - interested in legal reasoning.
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Table of contents

Preface. 1. The Problematic Nature of Discovery and Justification. 2. Investigating the Analogy between Science and Law. 3. Examining `Discovery' and a Woman's Point of View as Justificatory and Rhetorical Strategies in Madame Justice Wilson's Analysis of the Right to Liberty in R v. Morgentaler, Smoling and Scott. 4. Investigating `Discovery' in the Arbitration Process. 5. Bernard Lonergan on Insight in Theoretical and Practical Reasoning. 6. `Discovery' in Theoretical Problem- Solving. 7. `Discovery' in Practical Problem-Solving. 8. Legal Reasoning in a New Context.
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