PLS 407- Philosophy and Development of Legal Judging Notes
1/4/11 Session 1, Topic 1
a. Every two days missed = minus 10 points
a. Wittgenstein: Home to no intellectual group. Bird’s eye view, culture from atop rather
than from within. How well we think is much more important than what we think.
d. Subject Matter
a. History of the philosophy of law.
b. What are SC justices supposed to do? How should they judge? How is it different from
everyday judgment? How has history/science effected judgments? What is bias, how
does it look, and what would decisions look like without ideologies?
c. When did legal judging begin and how has it been developed?
d. Originally, two courses: Foundations of American Legal Thought and “Empirical” Judicial
e. Developmental focus: What hegemonic legal culture says about its orthodoxy…
i. What was good judging to the Romans, English, during enlightenment , and now
with Modern America..?
f. Abstract and Excessively Philosophical
g. Some completely original material
i. Used mostly in 2nd half.
e. Outsider’s perspective/ Sources of “authority”
a. Social Science concepts/theories
b. Legal Culture
a. 20% of exam from textbook
b. Within 3% of grade, reading can make or break you.
c. Textbook is only supplemental. The books = bonus knowledge.
b. Syllabus, Lectures and Class emails
i. Grading Criteria
a. Midterm- 33% and Final – 33%
i. Complicated multiple choice
ii. Writing component: Take home essay (50% of exam grade)
i. Leaving early won’t get full credit
i. Handed in, graded.
ii. Distinguish each lecture.
iii. More thorough, the better. Not outlines.
iv. Due the day of the exam, no excuses.
d. Quality Points, 3% and bonus
i. Contributing to the course environment.
ii. Participation w/ clickers, donating typed notes
iii. Course wiki: Great opportunity for us to make a perfect set of notes for others
e. Grades are earned, not given. No favors, no rounding (after borderline policies. 1-3%
i. Bonus is awarded for:
1. Quality point score a letter higher than course average
2. Exam grades one letter higher than course average
3. Reading questions one letter higher than course average
4. Attendance one letter higher than course average
ii. Merit adjustment
1. Notes and attendance can only help. If they bring down the grade, they
will be disregarded.
1/6/11 Session 2
1. The Power to State the Law
a. Foundation of law is in two basic sources
i. Courts issue judicial decisions
ii. Legislatures make statues
b. Who has the power to state the law?
i. What does it consist of?
ii. How has it historically developed?
iii. What is remarkable about it?
2. Law in Rome
a. Creation of the Republic
i. Period of concern: 510 BC -287 BC
b. Social Order
i. Patricians were the aristocracy of Rome.
1. Caesar’s family called Julians. Claudius was a claudian
2. DUTY to govern, Father of the country
1. Ordinary people. Merchants, shopkeepers, laborers
2. Middle, lower class
c. Rise of Law and Republic
i. Plebs want more rights. Resort to strikes, thus shutting down the economy
ii. Result= Own political assembly, Plebian Assembly
1. More like union hall, no lawmaking authority
2. However, it could organize people and officially petition the (patrician)
Senators for relief of their grievances
3. First major reform: require the Senate to “STATE THE LAW”
1/11/11 Session 3
1. Birth and Significance of Common Law
a. Legislatures gained the power from Kings
i. Write the laws into statues. (codified law) Enacting, passing, legislating
ii. Kings originally had the power to state the law, legislatures gradually took it.
iii. EX: 12 tables, Stimulus bill, Healthcare bill
iv. Law must be formally articulated, externalized from the lawgivers.
v. Universality = rule of law
i. Give decisions rather than laws. Creates precedence
a. Statues are non-Justific. It doesn’t have to be morally correct, fair, or “good.” Only has
to be promulgated through the political process.
b. Nothing says that “you can’t pass a bad law”
c. Courts and Justification
i. Something makes it right or justified and the decision represents a larger
reasoning or analysis.
3. Courts in the Middle Ages
a. Early on, it was only a creature of the sovereign.
b. King’s Court, Jobs at court…
c. On the court: clergy, aristocrats
i. Given names to members: Magistrates, chambers, councils, procurator
4. Philosophy of Tradition
a. Henry 1st and 2nd are concerned with how disputes were handled in country. Emphasis:
To improve, they want to make the customs and traditions uniform. (Develops into
b. But how does one do that? (Example: Quarters vs. Semesters )
i. Could be legislated, by act of sovereign. Statue
ii. Gov’t could study it, gather evidence and make a recommendation. Commission
1. (SS, Deficit)
iii. You could give it over to one who would gather the tradition and make proper
sense of it. What about a Philosopher, Elder, or Sage?
c. Gathering the Tradition
i. May not be what you think it is…
ii. The tradition may be:
1. Decided by local educational leaders, hence the variation. And there is
iii. When seeking a tradition, what are you really seeking?
1. Fad, choice, or a culture?
2. Find what is behind the choice, something deeper--- thus the principal is
the same, but the individual choice is not.
iv. How to make sense of it? What to do with this information?
1. Judges generate decisions and assert what the law is.
5. The development of Courts and Legal Orthodoxy
a. Magna Curia
i. Latin for “Great council.” Existed in Italy during the renaissance, Central Royal
court. Composed of elites: dukes, barons, clergy.
ii. Purpose: state the tradition
b. Knights and Methodology
i. Collect facts of the dispute, present to Magna Curia. Curia determine the proper
resolution and then write it down . (Monks write it down on scrolls)
ii. No clerical things were included (dates, times, incidents)
1. It’s a narrow description of facts, identification of principals or idea.
First rendering of legal opinions.
c. Writ System (Writings accumulate)
i. A writ is a pleading, cause of action, or cause.
ii. To take someone to court, must first file a writ.
iii. Paperwork states the facts, legal authorities, or principals that control the
resolution. Obviously, the process becoming more formalized.
d. Inns of Court
i. Knights set up own shop, they know what the scrolls say and know the writ
system. Became a sort of local judge
ii. Local gentry would also learn the writ system then play the role of barristers or
iii. Law as an apprenticeship: learning the craft on the job.
e. Development of the Court System
i. Elaborate system began to develop
1. 1230: Court of Common Pleas. Recognized 500 different kinds of
actions. Could issue awards for damages and try criminal cases.
2. Court of King’s Bench: appellate court
3. Court of Exchequer Pleas: Specialized tax court. Court is also
administrative, like the treasury.
6. Metaphysics of Common Law
a. Regime Ideology: The use of authority is always accompanied by a rationalization about
why the authority is legit.
i. Aka “divine right”
b. Regime Ideology for Courts: Medieval times, the rationalization for entities like the
Magna Curia was metaphysical. Wise elites, like sages, knowing the great customary and
unspoken traditions, knowing oral traditions, knowing the history of peoples. “the
7. Compare w/ Statutory Power
a. Advertisement for “law” was different from what was mentioned earlier.
i. Elders give right answer and the right way to do it. Also claiming “right reason.”
ii. Law must be correct!!
8. Common Law
a. Common law = judge made law (precedents) OR the ancient body of principles that
began the common law system.
b. In theory
i. Judge one case at a time, produce individual decisions, and thus comparatively-
common law is created.
ii. Ex: Common law of Battery
1. Other: Crimes, legal procedure, divorce, torts, property, contracts.
iii. There are also other ways to find answers to cases:
1. Study the problem
2. Take a poll
3. Consult interest groups
c. Keep in Mind:
i. Case results have a rationalization. Unlike statutory law, the law giver
demonstrates why the law is correct.
ii. The body of decisions that build up are thought to be a kind of knowledge.
iii. In the early period, the decisions take the form of maxim or platitude
a. Every time a judge makes a decision, it’s a precedent. (decision precedes the outcome)
This word is used as it is trying to convey the idea that the decision was already there
b. Ideology: Setting a precedent is an important event. And therefore, it shouldn’t be
c. Stare Decisis: Stand by the decision and not let it be altered.
d. What distinguishes what courts do is the consideration of their past.
i. Compare: Legislators don’t have to consult past moral choices to make the
current choices adhere to it. In theory, he can innovate and double talk.
ii. Compare: Board of directors. Whether prices increase or stock options change,
the decision isn’t theorized to be based upon what they have done in the past.
a. Development: Mechanical jurisprudence or formalism. People begin to lose cases
because of a technicality. Precedents cannot be changed, so the answer is frequently
b. Courts of Equity: King created, “the keepers of the king’s conscience.” Staffed by clergy.
Applied general standards of fairness rather than legalistic formalism—could overrule
the common law courts. Essentially, a second set of common laws. 1474
i. Hence: “I violated the rule for reasons of equity.” Ex: Syllabus example.
ii. Today: No such thing as court of equity. The two merged: law and equity. There
are legal and equitable relief which may be sought at the same time.
11. Homework Assignment: Bonham’s Case
12. From Britannica Online:
a. Bonham’s Case, (1610), legal case decided by Sir Edward Coke, chief justice of England’s
Court of Common Pleas, in which he asserted the supremacy of the common law in
England, noting that the prerogatives of Parliament were derived from and
circumscribed by precedent.
b. He declared that “when an act of parliament is against common right or reason, or
repugnant, or impossible to be performed, the common law will control it and adjudge
such act to be void.” Coke had already applied this doctrine to acts of the king and, in
this case, was extending it to parliamentary legislation. However, the principle of judicial
review of parliamentary acts implied by Bonham’s Case never took hold in England, and
Coke himself seems to have later abandoned the idea.
1/13/11 Session 4
1. Common Law Review
a. Advertisement for the Orthodoxy
i. Kept by elders, sacred cultural tradition. Resolution was correct because it was
decided upon by those w/ experience.
b. Seinfeld Car Situation or Football Pass
i. But, what is the correct way? What does the culture say?
ii. Options for decision: Voting? Those with vested interests? Or, like common law
was established, connoisseurs of the game?
c. Real Example of the orthodoxy
i. Tipping at a restaurant, do you have a duty to tip if you can afford and if the
service was good?
ii. What if a person unjustly refuses to leave a tip, and the waitress sues.. legal?
iii. Employer confiscates a tip left for the waitress and the waitress sues…. Legal?
iv. Does tipping at a bar change the situation? Subway? Meijer’s?
v. The point: Is there a logic to tipping? Can logic sort out all of the acts and
practices of tipping?
d. CASUISTRY: reasoning one case at a time, thus developing a common law.
2. Bonham’s Case
a. Dr. Bonham wants to be a physician, must go to the Royal Academy. Medicine at the
time was a sort of alternative healers.
i. To be given a license to practice to must have been admitted into the college,
something that not all people may do.
ii. Bonham begins to practice without doing any of this.
b. The college may arrest (acting as the police) and punish you.
i. No understanding of separation of powers.
i. No man may be his own judge, college may not prosecute this matter because
it is the charging, punishing, and interest of preservation entity
d. Lord Coke: Common law controls acts of parliament. Common law and common reason
are one. Scolded by King, also demoted.
e. Implications of Decision
i. First time in West where a court exercises judicial review. Parliament may not
violate fundamental justificatory law. (remember, no English revolution.
Voiding the law was voiding the King’s sovereignty.?
ii. Case still complied with, although extremely new.
i. We do not use common law to void statue, common law is lowest form of law.
ii. Come to believe that judge made law is less important than statues
3. Another Coke Case
a. Today, juries decide the facts. Not the law.
i. How did this happen?
b. Coke issued a maxim: “Where reason stops, the law itself also stops.”
i. Suggestion: Judges do reasoning and therefore take care of the law.
4. But what are these judges supposed to do?
a. What is the ultimate basis for legality? What happens with non-Justific and Justific laws
b. When may a statue be void?
i. St. Thomas Aquinas: Void a law when it disobeys with God’s laws. “That which
is not just.. “
5. America creates a very unique solution as to when to void statues, why and how.
6. What allows violation of a statue?
a. Science? Social Contract? Reasoning?
7. Social contract placed into law, basis for when to void.
a. Void when statue violates the social contract.
1/19/11 Session 5
Review: Power of the Statue, common law and method, connoisseur judgment, Bonham’s case
1. Philosophical Terms
a. Positivism: Only the formally enacted rules of law, including court precedence. Using only
what the legal text says. (Positive law is what the syllabus says exactly.)
b. Natural Law: Sloppy term for law that is not positivistic. Natural law is law that isn’t
articulated. Anything that is authority to resolve the case beyond the text. (HW due on 7th
day… but 7th day is a snow day.)
c. Epistemology: What constitutes knowledge? (How do you know you’re here?) What
justification amounts to and how much is needed to say that you “know.” Legal
Epistemology: when is a legal decision correct? (aka philosophy of law or jurisprudence)
d. Paradigm: “Justific context.” Adkins to food pyramid to glycemic index.
e. A priori: A premise we assert in an argument that is said to be foundational and is deployed
by default. (Fiat, debating term) Ex: The court should follow God’s law, because God exists.
f. Metaphysics: Beyond physics, science, and the material world, may be spoken of or wielded
in the real world. ex: Magic, Karma, voodoo
2. Cultural Ideas about Higher Law
a. Grandiose Sense of Law
i. “Law of nature,” uses the word law to be immutable, true and self-evident.
ii. Truth and proof are external. Descartes: “I think, therefore I am.” Emerging notion
that true law is to be found by our best thinkers.
iii. Law is separate from politics?
1. Statutory power used for war, taxes, police state, and order. (politics)
2. Justific power: divorce, contract, property, equity, (law)
iv. Bonham’s case: what happens when the two cross?
3. American Constitutionalism
a. Structure and the role of statue is different than in the parliamentary system. The judicial is
its’ own creature
b. De Tocqueville: the judiciary has the last say over legality. Every social or political question
will degenerate into a legal question. (Keyes: Jurocracy)
i. Hamilton: Don’t fear the courts as they don’t have the key political power over the
purse or sword. Also says judging is special: bound by legal orthodoxy.
c. Role of HIGHER LAW
i. In the old days, law was law. The lawgiver gave the law.
ii. Greatest gift of American culture: the contribution of codifying higher law.
1. Write down all enlightenment truths, sacred traditions… etc
2. Also, there is a differentiating factor between law making and constitution
creation. Using different people and different process.
iii. Positivism stealing natural law’s thunder.
1. Natural law ideals translated into text… Makes the constitution into a sort of
iv. Common law now the lowest form of law. Legislatures overturn common law rules
all the time. American hierarchy of law: Constitutional, Statutory, Administrative
regulations, then Common law
v. Loophole: 9th amendment. Positivism is not the law of the land. If law is only what is
promulgated, and what is promulgated is not the highest authority. (Judges scared
of this power)
d. System engineering
i. The enlightenment produced the autonomy of reason and the primacy of science.
Newton introduced the important ideas to spark the movement. The universe is not
governed by superstition.
ii. Framers make it difficult to wield the power. Hard to capture American government.
Must go through two things, decimation and partition. Result: Federalism with two
parts w/ distinct powers
iii. Checks and balances make the branches compete w/ each other. Also
iv. A perfect machine??
1. Effect of the enlightenment. Politics should be subject to natural rules.
“Machine makes right…” also justifies law making.
1/20/11 Session 6
1. Classical Legal Thought
a. Review:::: Constitution as supreme law of the land: promulgation of fundamental law.
NOW, instead of a judge voiding a law for general reasons, a law is voided because it
violates a provision of the constitution. Includes enlightenment’s effect on American
government, basic Principals of the machine, and difficulty of governing. Separation of
work product. (Legislating, executing, and judging)
b. Rationalizations for statutory power:
1. Might makes right 2. Divine Right 3. Machine makes right.
c. Classical legal thought refers to the type of decision making style that American judges
in the 1800’s tended to utilize. How intellectual culture comes to rationalize authority is
also changing in the 1800’s. Enter into the “moral sciences” period. (precursor to
positivism) Intellectual kingpin becomes science (from “nature” and “reason”)
d. Begin to “scientize” judging- judging is a science. (Sort of regime ideology) Remember,
science now and then is different.. only a way of talking. Called a science because it has
correct answers and a uniform method for arriving at the proper answer
e. Moral science developed in the 1800’s. Held that proper moral reasoning is a science.
Held that one could formulate correct conclusions through logical deduction and valid
reasoning. “Moral Formalism.” Example: Moral Sciences club @ Cambridge.
f. CLT: Judges find correct legal answers through two sources of authority
i. Sacred traditions and Logic or autonomous reasoning.
g. Important figures in establishment of law as a science.
i. Blackstone argued that the creation of common law was only a recognition of
great customs and traditions. Presumably, judges did this through some special
ii. Analytic wing: Langdell. Legal analysis is a science. Invents the casebook
method, thus students may extract the important information of the case and
compare it to current cases.
h. Professionalization of Law School: Old, like an internship. New, undergraduate and then
i. Analytic component: syllogistic logic, analogical reasoning, if then statements
i. Assumptions; could formalize reasoning, truth external to the mind and may be
demonstrated in analysis and proof.
ii. Autonomous science: Law is like geometry, discovering a rule of law is like
discovering a rule of law of geometry or physics. Law is self-contained. It is a
“hard science.” The means of deciding a case are the ends. Law is like a
iii. Judges do not make up conclusions, they’re found within the law. Judging has
nothing to do with politics. (Much like divine right. Not necessarily believed but
packaged as an idea. ) Keep in mind:: only a genre or style of decision.
j. Two Ideas:
i. Classical legal thought: Law is its own science. Composed of sacred tradition
and analytic logic. Therefore, like a mathematics or physics.. answers preexist
the problem and the craft is self contained.
ii. Classical Determinism: there is one right, preexisting answer. It is certainly
justified and only trained judges can access it as long as they’re not playing
a. Marbury v. Madison
i. Marbury appointed to a judgeship, didn’t actually get the position because of a
regime change.. thus, sues.
ii. Federalists lost to Jefferson, attempted to pack court on the way out. Some
commissions were never delivered even though confirmed. New administration
refuses to give the papers. Congress has law on books that seems to say the SC
could grant a writ of mandamus to force Jefferson to hand over the papers.
iii. Issue: Must have trial b/f writ. Congress is saying it is ok for the SC to have a
trial, but Marshall believes the constitution does not allow it
iv. How should Marshall decide?
1. Defer to power center? Follow Precedent? Go with most popular? Best
policy? Follow original intent?
2. Rejects all options and is going to reason his way to the result using
“iron clad” logic. No maxim of platitude.
v. Decision: The constitution is the supreme law. It is more important than a
statue. Courts are asked to interpret law. We cannot do this if we ignore the
supreme law. Therefore, we are the ones who interpret the constitution.
(CREATES JUDICIAL REVIEW)
b. Wynehammer. 1856
i. Concerns prohibition. NY passes law that alcohol is illegal.
ii. Is it unconstitutional for the government to outlaw liquor and why?
1. Issue: Property. Taking of property without due process. (It really isn’t
though, law has been properly passed and approved)
2. Decision: Alcohol is a commodity and possession. The law protects
property and is not up for debate. (A priori) You can’t discriminate
against beer, tradition says take property- must provide compensation.
a. Legislature is limited by nature and right reason. (but only
because there is a due process clause)
1/25/11 Session 7
Midterm::: Feb 8th. Pay attention to Lochner. Holmes dissent and Harlan’s Concurring opinion. Brown v.
Board of Ed and Brandeis Brief
a. Classical Legal Thought
i. Law is its own science. Composed of sacred traditions and analytic logic. Law is
like mathematics or geometry. Answers preexist. The craft is self contained or
b. Classical Determinism
i. One right, preexisting answer to a case. It is certainly justified, and only trained
judges may access it and they are not playing politics.
c. Decision making styles
i. 1600’s. Cryptic platitude or maxim. 1800’s. Syllogisms, if-then logic, analogical
i. Known for herculean approach. Believed the judge should try to craft an
argument that cannot be defeated, thus a certain style of the judge as the best
thinker. (similar to the 1800’s style--- “Philosopher-King”) Sherlock Holmes style
2. Establishing Judicial Review
a. Blackstone concerned w/ tradition and custom to determine what the law “is.” New
precedents only vindicate the true law. Judges never make anything up.
b. Marshall answers as a piece of logic. Historical syllogism. By an act of logic, we know
that the SC is permitted to overturn acts of Congress.
c. Law as a formalistic analysis. Langdell. Law is formalistic, learn the case book method.
(Learning a tree one leaf at a time.)
i. FORMALISM. The means are the ends. Law is like calculus.
d. Look at 1800’s intellectual culture, there is a similar sort of social phenomenon. (John
Austin’s style of philosophy)
3. Brandwell Case
a. Female, Myra Brandwell wants to be a lawyer, already writes a legal periodical.
Becomes successful among peers, has studied law and passed all exams. She is just as
qualified to be a lawyer as any male.
b. Issue:: Equal protection or Due process. Should women be allowed to practice law?
c. Justices Field, Bradley and Swayne:: Naturalist of female sex is unsuited for many parts
of life. Women should stay within the domestic sphere. WOMEN are in this caste,
history has determined so. A PRIORI. Attempts to construct an argument within the
framework to appeal to “natural order.”
i. Common Law says::: A woman has no legal existence separate from her
husband. No ability to make independent contracts.
ii. Classical Rhetoric… appeals to (medieval form of) common law. Use of an
important point of logic. If you cannot enter contracts how can you be a
d. Did justices base case on ideology? And is that okay?
i. Any act of judgment never involve a world view?
e. Premises Example :: Differences
i. Use of ideology translated into legal mechanisms—so the law is used to enforce
the ideology. The premises may be different and also true.
4. Dred Scott
a. Slave sues for freedom. Says he is free pursuant to state law. However, he sued in
federal court. To be able to do so, needs diversity jurisdiction. (People from different
b. Great tradition. Black people cannot be citizens here as they were originally property.
Taney: I’m not biased, no politics.
i. But who benefits from this tradition?
c. Culture is dynamic, organic. For law to be meaningful, it must have a meaningful
relationship to society.
5. Muller v. OR
a. 1908. Women working overtime was seen as a disgrace to the family/children for
mother being outside of home.
b. Opinion: role of women is important for childbearing—working overtime is damaging to
that role. Policy argumentation, a-priori
c. Why the idea that law as a science fails?
6. Logic of contracts
a. What is a contract? Classical legal thought: there is a necessary essence of contract.
God principal:: a mutual exchange of detriment. Needs to be a formalism.
b. Defined:: offer, acceptance, consideration. (may be applied to all aspects of contract)
c. Analyticity:: if it is not tradition that a contract exist, does that mean it will if logic says it
i. Ex: Gay marriage, prom date, giving bride away, xmas presents
ii. If offer and acceptance come through behavior—then it is a contract.
d. Holmes says:: bullshit. There is a new way and new thing we should do. Tradition is
1/27/11 Session 8
1. Oliver Wendell Holmes and the Realists
a. First person in American legal culture to rebel against classical legal thought and what
judges should do. Greatest SC justice, next to Marshall. Fought in civil war, became
lawyer and professor. Wrote an important treatise called The Common Law in 1881.
Appoint to SC in 1902 by T. Roosevelt. Served until 1932 at the age of 90. (record age)
b. Against classical legal thought and “a priori” judging. Historic opening volley in The
Common Law: “We must know what it has been and what it tends to become. We must
consult history and existing theories of legislation.” Law is not self contained nor a
syllogism. Not like the rules of geometry. Not an autonomous contemplation. Law in the
form of a priori is out. Judging is policy making, judgments have an evolution.
c. Implication that judges don’t find the law, they make it up. They make it what they want
it to be.
i. Certain things are in: social needs, popular morals, and policy intuition.
ii. Out: Logic, mathematics, syllogism, corollary, axiom.
iii. Rejection of:: law as self contained method, the a priori decision format, the
means are not the ends AGAINST FORMALISM.
d. Realists: Advocated the same sorts of things as Holmes.
2. Lochner v. NY Majority
a. Facts: Boss bakers (in basements) in early 1900’s. Poor working conditions which include
bakers lung, standing all day and working more than 60 hours a week. Low profit margin
anyway. NY enacts a labor reform, no more than 60 hours a week.
b. Issue: “Freedom of contract.” Due process interpreted in such a way to protect
employer/employee contractual relationship under the terms that each adult sees fit.
Really is corporate welfare to protect the capitalists. (note similarity of Wynehammer)
i. Employment is a contractual relationship.
ii. Contracts protected by law.
iii. Doesn’t matter if workers are getting screwed. All contracts treated the same.
iv. The due process clause does not allow for manipulate this sacred right.
c. Majority premises::
i. There is the right to freedom of contract. (Found through precedence and
sacred tradition.) The law also says that states have police power. (Regulate for
health, safety and welfare.)
ii. The police power can’t win here because::
1. Bakers are not disabled nor wards of the state.
2. Baking is not dangerous compared to coal mines.
3. If the legislature may regulate this, they can interfere into working
conditions of any employment contract, which could destroy the
freedom to set working conditions by contract.
3. Holmes as the Great Dissenter
a. Says the judges are approaching the Lochner case incorrectly. Based on economic
theory which a large part of country does not entertain.
i. The issue is the theory of how to play capitalism. Paternalism or laissez faire?
Freedom of contract is an economic ideology. The political system picks
how to play, not judges. The constitution doesn’t tell us how to play capitalism.
ii. A-priorism is not logic, it is the accident of opinion. If reasonable people could
disagree whether this violates law, judges shall leave it alone. Stop using a-priori
decision format. Every opinion could become law if it were the natural outcome.
iii. (Law = Hegemony??) Law = order of its time. Law = the great needs of the day
that prevail in a system designed to make victory difficult.
b. Significance of Holmes and the Realists
i. Over time, his dissents become law of land. His approach is adopted to some
extent in the SC with the election of FDR.
ii. Three approaches emerge: 1) Sociological Jurisprudence 2) Positivism
(most dominate) and 3) Skepticism
iii. Who are the realists?
1. Legal academics in 1920s. Most famous: Karl Llewellyn and Roscoe
Pound. Some of them develop a new school of thought: no real
difference from Holmes.
iv. Beliefs::::: 1)Law is nothing but good social policy. What the rights are is
irrelevant. 2)Law is made, not found. Answers do not preexist. It’s not what
tradition says, decisions have options. 3) Law is not self-contained 4) Tend
toward a faith in legislative policy organs, it is the proper way. If you want social
reform, go to elections. The court is not supposed to disturb.
4. Cultural Developments in American Jurisprudence in early 1900’s
a. Progressivism. America is transforming from an agricultural to industrial society.
Reform movements arise to try and make laws fit the new world. Ex... Labor Reform,
direct election of Senators, women voting, regulation of capitalism, and in general an
activist and regulatory government. (Birth of modern day liberalism)
b. Empiricism… or scientific positivism. Science was best understood as an empirical rather
than logical pursuit. Things that are true by the 5 senses are more important than things
contemplative or reflective. Ex. Science is more important for knowledge than
philosophy. Education begins to change after the civil war, laboratories begin to emerge.
First in Germany, John Hopkins is the first in the US.
i. Basic ideas from this influence: the scientific method, logic is not helpful unless
it is informed, mathematics is not helpful unless it is put to use, derive
conclusions from evidence not a priori. Later on, this is applied to human
c. Emerging notions of Realism… 1)Deference principal, the political assembly is a superior
policy organ. Since all that lawmaking is, is intelligent policy making.. the courts are
structurally inferior at doing so. There is the sense that legislature is better structured at
making policy choices than the court.. also, they are able to comprehensively deal with
problems and the court is not. The legislators are able to be accessed by citizens, have
constituencies who may battle in a democratic ritual.
i. Also, era of legislative codes::: Comprehensive regulatory enactments, such as
the uniform commercial code or tax code.
ii. Also era of administrative state:: bureaus begin to develop
d. 2nd consequence:: 2)Policy logic is fact based. Want to know what is the best, then study
it. Aka, pragmatism. Being policy wise is no longer based on logic. Gather data and
make conclusions to suit it.
i. Ex: policy rates, or what should be do in the Afghan war.