Sociological Jurisprudence by Wittgenstein

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									Today’s Lecture:

From Realism to Sociological Jurisprudence

Number:

9

Lecture Organization: • Class Announcements

• Review
• Two Consequences of Realism • Law as a Growth Science? • Brandeis Brief • Brown v. Board of Education

• Other Examples of Sociological Jurisprudence
Time

Class Announcements

Reading • Brown v. Board of Ed • Brandeis Brief

• Scalia, pages 12-14
• Van Geel, Chapter 7 (Justification) Homework Question:
(1) what is the basis of the decision in Brown? On what is it founded? Why does it purport to be required?

(Part II Homework)

Class Announcements

final exam reading -- Brown v. Board -- Brandeis Brief -- Wilson

midterm reading -- everything else I assigned

Class Announcements

paper -- here is your paper topic -- due on 16th with consults; 19th otherwise

exam
-- exam will be Oct. 12 (Monday) -- Multiple Choice Questions?

cases on exam!
Time -- I can ask you about anything in the cases – it’s fair game.

Review

Lochner (whether to use the Due Process Clause to enforce a theory of capitalism) Holmes and the Realists

The Implication --

In:

Out:

Social Needs
Popular Morals Policy Intuition
Judges don’t FIND law; They MAKE IT UP. They make it what they want it to be.

Logic
Axiom Corollary

Mathematics
Syllogism

The Implication --

In:

Out:

Social Needs
Popular Morals Policy Intuition
What is being rejected: 1. A-priori decision format (“Nature says… Logic says”)

Logic
Axiom Corollary

Mathematics
Syllogism

2. “Law” as an autonomous, selfcontained method.

(1881 -1935) Holmes

(1900 -1935) The Realists
Realist Beliefs: 1. “law” is good social policy 2. “law” is made, not found 3. “law” is not self-contained 4. tend toward a faith in legislative policy organs

Holmes and Humpty Dumpty

“law”

Three Approaches Emerge

Time

Holmes Explosion

Sociological Jurisprudence Positivism

(Progressive
Determinism)

Skepticism
Domination of American Legal Culture

Time

(1881 -1935)

Holmes (1900 -1935)

The Realists

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” -- The political assembly is a superior policy organ -- Since all that “law” is, is intelligent policy making, the Courts are structurally inferior at doing it

Question: Why?

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” -- They were structured better than Courts to get at “policy facts.” • Could get all the interests, pro and con, together in the legislative branch and hammer out something that worked. • Could deal with problems comprehensively or semi comprehensively

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” -- They entered office with mandates and had policy constituencies who could battle in a democratic ritual -- Once in office, you could access them with your needs (call them on the phone, wine and dine, lobby, contribute. Etc.)

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: -- comprehensive regulatory enactments

• the tax code
Could you imagine what it would be like to determine tax law via common law decision making, one case at a time?

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: -- comprehensive regulatory enactments

• the tax code
• UCC (Uniform Commercial Code) • criminal codes (crimes no longer based upon common law) • banking, securities and exchange, selling insurance – everything is now regulated by a legislative code.

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: -- to see the problem, consider these social problems: Health Care Safety of Food Regulation of Air Travel Conditions of Labor

Question: Answer:

What are the & the done in trying to It is inefficient problems with the blind write policy in these areas using (court lacks real expertise, tries to do it common law method? using some moral reasoning)

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: -- it is much easier to take pro and con interest groups, put them into a legislative arena, and let policy reflect a political solution between antagonistic stakeholders (political science calls this “pluralism”)

Two Consequences of Realism
Two Important Notions Emerge “The Deference Principle” Era of the Administrative State -- This is also the century when the administrative state arrives • government bureaus like EPA, FDA, OSHA, FCC, FTC, SSA, etc., etc. (talk more about this later when we talk about positivism) THE POINT: the deference principle held that the center of policy life should be the political assembly, not the courts

Time

Two Consequences of Realism
“Policy logic is fact-based” -- You want to know what the best policy is? Study it. -- Being policy wise is no longer logic-based, it is fact based. It is about social utility

-- You gather the data and make a conclusion that suits it
-- This is what good policy making is

Question: Question: What should be donewhat level should At about the Iraq war? interest rates be?

Law as a Growth Science? An Introduction to Sociological Jurisprudence
Introduction “Sociological Jurisprudence” is a school of thought about how judges should decide cases It arose OUT OF the realists movement Not all realists came to advocate this, but some did I think the biggest proponent was Roscoe Pound. This school of thought is going to influence American legal culture, but only slightly

Frankly, it is really going to be a bit of a fad.
We are going to dispose of it first before going on to the rest of the story (get it out of the way)

Law as a Growth Science? An Introduction to Sociological Jurisprudence
Basic Idea Inasmuch as there is a new epistemology out there that favors empiricism, why not simply incorporate that into what legal culture says is proper judging? If it is true that facts are king, judging can still be objective

Instead of judging being a sort of self-contained logic, perhaps it is an effort to find the best factually-based policy.
Retains a sense of objectivity to it Judging can still be “special” if it retains objectivity This is a possible way to save Humpty

Important Distinction “growth science” • Anthropology “hard science” • Calculus

• Sociology
• Psychology

• Physics
• Chemistry

Question: What is the difference between these two pursuits?

Important Distinction “growth science” • Anthropology “hard science” • Calculus

• Sociology
• Psychology 1. probable answers 2. empirical (look science) 3. more paradigmatic, “competitive knowledge”

• Physics
• Chemistry

1. certain answers?
2. more mathematical? 3. central, dominant paradigm (e.g., big bang)

4. truth changes with time (with more knowledge).
“Cumulative Science”

4. less disruption

The Way to Save Humpty ….

“law”

Important Distinction “growth science” • Anthropology “hard science” “Law” is a • Calculus

growth science!
• Physics
“Law” is a science • Chemistry

• Sociology
• Psychology 1. probable answers 2. empirical (look science) 3. more paradigmatic, “competitive knowledge”

like sociology or anthropology 1. certain answers?

2. more mathematical? “Law” is a kind of 3. central, dominant policy science! paradigm (e.g., big bang)

4. truth changes with time (with more knowledge).
“Cumulative Science”

4. less disruption

Important Distinction “growth science” • Anthropology
Note: -- I do not like the name sociological jurisprudence -- Therefore, I have taken the liberty to re-name it. Progressive Determinism 1. Judging has correct answers

• Sociology
• Psychology 1. probable answers 2. empirical (look science)
1. Judging has one right 3. more paradigmatic, answer 2. Certainly known Classical Determinism

“competitive knowledge”

2.
3.

But the answers are probabilistic in nature
Found through empirical social science

4. truth changes with time 3. Self-contained logic (with more knowledge).
“Cumulative Science”

(1881 -1935) Holmes

Time

(1900 -1935) The Realists

Sociological Jurisprudence

Brandeis Brief

Muller v. Oregon Women working overtime case Brandeis Brief -- 113 pages long -- only 2 pages of legal authority -- cites all sorts of studies attempting to show why women working overtime causes extremely poor policy consequences and why the “new age legislation” is factually smart -- the citations are to social science studies, hence the name “sociological jurisprudence”

Time

Brandeis Brief

Muller v. Oregon Brandeis Brief -- The Court did not rely upon the brief much in its decision; the opinion seemed more “old school” in style Link. (if enough time)

Brown v. Board of Education

Facts: -- Trying to desegregate public schools

Context
-- Plessy v. Ferguson

–- the Equal Protection clause is satisfied when states intentionally castigate on the basis of race, so long as there Answer: are “separate but equal” facilitiesQuestion: Question: Question: Let’s imagine What isto separate a hypothetical world The very decision the law of the What it makes where facilities really were separate v. creates a stigma –is this case but land before Brown about? equal. (Take time topsychological is someone feel imagine it). What Board of Education would be wrong decided? harm with that?

Brown v. Board of Education

The Ruling -- The equal protection clause cannot be satisfied by having separate but equal facilities –- not even if the facilities were made equal. -- “separate but equal” can never be equal.

Question: Question: What does the Court rely upon How does the does to make its decision? HowCourt rule in the case? it reach its conclusion?

Brown v. Board of Education

Doll Studies -- The plaintiffs in the case introduced studies performed by a researcher Kenneth Clark. -- He gave school children black and white dolls to play with -- The kids in African-American schools more often selected white dolls to play with instead of black ones, and indicated that they were the “better dolls” -- The point: the act of segregation was a formally-enforced social stigma that left an impression on children that they were not good enough to be in the “normal” places.

Brown v. Board of Education
The decision’s logic -- The decision’s logic is extremely simple both in structure and in what it asserts -- in fact it is syllogistic (let’s look)

Meet the New Boss 1. The Law says that everyone gets equal protection True! Legal Starting point

2. Education is important True!

Factual A priori

3. segregation causes psychological injury Key Empirical Premise! How does the judge know if this is true??

Warren's Opinion

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is rejected.”
K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of [347 U.S. 483, 495] Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

Meet the New Boss 1. The Law says that everyone gets equal protection True! Legal Starting point

2. Education is important True!

Factual A priori

3. segregation causes psychological injury True! Key Empirical Premise! Conclusion follows logically 4. therefore, segregation is not equal

Brown v. Board of Education
Comparing the two kinds of “logic” -- Note that Marshall’s syllogisms did not have to look at the world

1. const. is supreme law

2. statutes are “smaller” law
3. courts interpret law 4. you can’t do (3) if you ignore (1)

5. therefore, courts interpret the constitution

Brown v. Board of Education
Comparing the two kinds of “logic” -- Warren’s syllogism is different. -- You have to go out and LOOK AT THE WORLD. Someone has to collect scientific evidence of some sort Equality in theory v. equality in fact Answer:

Answer: -- Note that separateindeed a use of naturalnotion. You It is but equal is an abstract law, but a Question: have to close It is not legal information, sophisticatedlaw your eyesIand invent it. That’s allanswer is more progressive and yet it it is; equality As is the relationship of this school have defined it, the makes in THEORY. It’s a What Notekind correct. Itauthority. It is formalistic thatof equality. An equality in theoretically as human some version. It is extra textual isknowledge “yes.” of thought to natural law, as I have the forms. “epistemological toy”forms of judge progresses,Isthat the formally-articulated something so do the that the natural defined it. progressive determinism -- But equality in accessesnature, reason,law? theory.had fact demandsorder to make account law. God,a inhave taken into law pure, Did rule would that natural science, and form of you test your good, correct, true, pulse. Take evidence. it work? Are people equal. Take aof this information. now objective it known empiricism.and beautiful

Answer:

Other Examples of Sociological Jurisprudence
Your take-home exam/paper You are going to apply all of the schools of judging that I teach you We have to start practicing this Let’s take some examples …

Examples of Sociological Jurisprudence:

1. Speed Trap.

2. Gay Marriage.
3. War on Terror (domestic spying)

Examples of Sociological Jurisprudence:

1. Speed Trap.

2. Gay Marriage.
3. War on Terror (domestic spying)

Examples of Sociological Jurisprudence:

1. Speed Trap.

2. Gay Marriage.
3. War on Terror (domestic spying)


								
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