Michael Sean Quinn, Ph.D., J.D., Etc.*

These are handouts at several lectures I have given to law students and others over a series of years.  If you are interested in legal philosophy focusing on judicial reasoning, precedent, holdings, dicta, and so forth, plus legal realism, you might enjoy these, as “quicky” ways to stimulate reflection.  If you are not interested in that sort of thing, stop reading immediately. Because this constitutes a integration, of sorts, of several different lectures, the “typeset” and the formatting are not identical for all parts of the collection. Computers have some rigidities, or I have too many left over ignorances. 

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I. REFLECTIONS ON PRECEDENT IN LEGAL REASONING

Components of Publically Available Legal Reasoning

A.  Holdings:


Narrow (Formalism? Akin to “originalism” )
Broader
·  Reasoning- in higher court
Actually Stated
Immediately Derivable Variation (Slightly Expansionistic)
Sensible or Reasonable (But Obviously Connectable)
Reasonable (But Not Obviously Connectable)
Possible (Creative But Not Fanciful)

B. Dicta: Typology

Starting Point: Any statement that looks like it might be a holding, but isn’t, or any argument in favor of something which is a holding but isn’t the holding itself.

Clearly Closely Connected & Easily Embraceable

 “Obiter Anything” = Any Affirmatively Asserted Proposition
of Law

Judicial Dicta: Clearly Connected and Part of Aimed Influence.

Guess what: part of dicta in a given case may actually be the holding, but the court is concealing it or doesn’t realize what it is doing. There is nothing wrong with that.

·        The phrase “We hold. . .” or the phrase “The holding of the court is. . .” do not make the rest of the sentence what it is said to be.
·        There is a subjective feature of what is a holding.  In the end, that characterization is not always clear and many characterizations are not objective.

II. EXTERNAL INFLUENCE IN CHAIN OF DECISIONS: PRECEDENT OR STARE DECISIS

A. What Is It and What Is Its True Nature
Essence:  Do it now as it has been done in the past.
·        Exactitude Decrease Probability of Error (or Recognizable)
·        Repetition of the Sensible  (or Appearance) Feels Like Objectivity

·        Barrel of Good Reasons (or Appearance and/or for Some but Not All)

·        Contribution to System of Larger Customs
·        Source of Social Agreement for a Lot of People and a Lot of Topics

·        Dissent is Restrained
·        One Important Source of Social Stability
Burkean Essence:  Do it now as it has been done is the past, almost and make noticeable changes only incrementally and slowly.

B. Typology

·        Imperial: Always Up to Down (How Else Could It Be? Opposite is Contradictory)

 Holdings Only
Rigid

  Exact Linkage of Court Statement  (Perfectionism)

Slightly Broader, then Rigid
Exact holding + reasoning
Reasoning Narrowly  Conceived
Reasoning Somewhat More Broadly Conceived
Reasoning Broadly Conceived
 Flexible: Holdings + What’s Really Necessary to Get There
Automatically Narrow as to Reason Modification
Somewhat Broader as to Reason Modification
Acceptance of Change Flexibility
Always Slow Change
Changed as Socially Needed [Legal Realism]

 Comment #1:  Flexibility becomes more and more exactly that as the flex grown.  Eventually it transcends itself, and becomes something else.

Comment #2:   It is often wise on any description of flexibility for both advocates and judges at all levels to minimize the appearance of departure from the past.

Question:  How do you feel about the Principle of Deception in the Rule of Law?  More about this in a moment.

·          Subjective Creativity

·        Subjectivity: Imaginative, Invention, Construction with Attention to Context

·        Highly Experimental.

·         Correctable but only by Conflict

      Inter-judicial

 Problem

  Legislature

People


Subjective Creativity Must Avoid the Appearance of Subjectivity in Presentation of Opinions.  Has this happened in the

Case of the Transsexual Prisoner Getting Surgery with Legal Fees Paid. [Originism Applied to Statute?]

Would it happen in the case of the Prisoner Who Seeks to be Granted “Deferred [?]”

The same is even more true of advocacy.

 True Unconcealed Subjectivism Creativity will destroy the foundations of the common law.  “Let 100 flowers bloom” is flatly with social stability. 

 Concealment difficult in Subject Version but Impossible in Objective Approach

Objective Creativity

Linkage to Outside System of Significant Social Principles.

  If the Legal System is to Play a Significant Role in Society, These Will have to be Moral Principles Generally Accepted.

 Is There a “One Hundred Flowers”–a “Large, Diverse Pluralism”–Problem
IV. SOME GENERAL QUESTIONS REGARDING PRECEDENT

(1)   What if every premise leading up to the conclusion that becomes the law (holding?) is false?

(2)   What if (1) is true and all the arguments are invalid?

(3)   Will there be precedent under stare decisis for

a.      (1)?
b.      (2)?
c.       (2) & (3)?

(4)   Does stare decisis entail a “yes” answer to (3)? Will that be as strong as

a.      The opposite?
b.      When some of the premises are true?
c.       When there are some good arguments?

(5)   Answers of other theories?


REALITY QUESTION

Is a 5-4 decision as strong a precedent as
a.      Unanimous
b.      7-2
c.       4-1-1
IV. Different Approach:
Scrap Precedent Completely

Decisions Are Made on the Principle of Justice as Applied.

Decisions Are Made by Panels of Judges Especially Trained for That Role

Precedent Etc; Stare Decisis Play No Formal, Mandatory Role.

Required that All Ideology and Politics be Scrapped.

Justices Are Required to Spend Two Weeks a Year in Advanced Judging School

Use Your Visual Imaginations and Imagine What Such a Judicial Panel Would Look Like

Try to Think What Principles Would be Involved and Where Would They Come From?

VI. “LEGAL REALISM”
NATURE, VIRTUE, and PROBLEMS
1.     “Legal Realism”: Paradigm: Blood in the Street
2.     Many meanings:
a.     Science-like study of law-related stuff, e.g., judicial decision-making
                                                              i.      Statistical sociology
                                                            ii.      Ideas of rational decision-making
                                                          iii.      Classics of psychology (e.g., of judges)
                                                         iv.      Not thusly restricted.  Not just about judicial decision-making.
b.     Sense of historical direction & not attached to the past.
                                                              i.      Legal history of is not a syllogistic path.  It is more like bricolage. The same is true of the present. It is not even simply like a quilt.
                                                            ii.      The past-that-has-arrived-at-the-present is not necessary for social stability.
                                                          iii.      Example: American property law changes early on. See Stuart Banner AMERICAN PROPERTY: A HISTORY OF HOW, WHY, AND WHAT WE OWN. Harvard U. Pr. 2011.  (This was a source of legal realism.)
c.      Dedication to the real:
                                                              i.      Look not at what judges say and argue. Look at the facts of a case and look at what they do.
                                                            ii.       Hooked up to contemporary pragmatism(s).
                                                          iii.       Folktales, superstition, & fairy tales not part of binding precedent.  They undermine bindingness.
1.     They are to be ignored because of social dangerousness in modern civil and civilized society, and
2.     Because of they are relatively uncivilized.

                                                          IVNot only of other judicial decisions but statutes and law-like customs.

1.     E.g., vaccines
2.     Out of date “-isms.”
3.     Pollution
d.     Dedication the “real” = How to see the world
                                                              i.      Fiction
                                                            ii.      Poetry: Philip Levine (d. 2015).
                                                          iii.      Ordinary language has indeterminacies built into it.  This can undermine the idea of there being an obligation to following a given interpretation of the law.  Here is a very important example of that kind of problem: “reasonable.”
                                                         iv.      Morality is integral to legal reasoning. Indeed, it is impossible for it not to be. 
1.     All legal systems are to be judged as to quality in terms of prevailing social/cultural values, and true values. Positivism accepts this, how could it not.
2.     Realism = values are part of legal systems.
3.     This means that “Pure Legal Positivism” is radically false.
e.     Opposite of “Formalism” as a doctrine of judicial (including quasi-judicial decision-making.
                                                              i.      Formalism: Almost all precedent is binding.
                                                            ii.      Formalism: Legal reason is always syllogistic like.
                                                          iii.      The English language is good enough that written out decisions and rules are not indeterminate and are good enough to virtually guarantee enough meaning that following  rule is not very hard, for the most part.
                                                         iv.      Formalism is inherently Burkean
                                                           v.      All law, including judicial and quasi-judicial decisions are political.
f.       Not take precedent as binding in all case.
                                                              i.      Social change can undermine precedent.
                                                            ii.      Usually go with social change.
g.     Do it “secretly,” including deceptively at first., especially in a larger democracy, where polarization and uproar always exist.
                                                              i.      Avoid direct challenges for as long as possible,
                                                            ii.      Indeed, for even if possible. 
h.     Dedication to justice: Principle—Strive for it as part of the law, not as an Ought from outside.
3.     Forms of Legal Realism
a.     Radical: Jerome Frank?
b.     Centrist: [Several]
c.      Conservative: Karl Llewellyn
4.     Legal Realism and the Twentieth Century
a.     Reversals of Courses:
                                                              i.      Race
                                                            ii.      Ethnic
                                                          iii.      Women
                                                         iv.      Gays—Best Current Example

b.     Major Achievement: Tort—Strict Products Liability

c.      UCC Art 2: “the idea that courts in deciding cases should look to immanent business norms, consisting of both the practices of the contracting parties and unwritten customs, is a fundamental tenet of the legal realist approach to contract interpretation, an approach that was developed, championed, and ultimately codified by Karl Llwellyn, a leading legal realist and the principal drafter of Article 2 of the [UCC].”Lisa Bernstein, The Questionable Empirical Basis of Article 2’s Incorporation Strategy: A Preliminary Study, 66 U. Chi. L. Rev. 710, 712 (Summer 1999).

d.     Partial Success—But Only Partial: Transformation of the Law of Standard Contracts Imposed on Lesser Customers.
                                                              i.      Case law
                                                            ii.      Statutes-DTPAs
5.     Criticisms
a.     Philosophical “mess”
b.     Undermine order in society
c.      Deceptive
d.     Not a satisfactory foe of legal positivism.
e.     Not a theory of law at all, not a jurisprudence, but a theory—perhaps an empirical theory?–about some legal reasoning. Bryan Leiter, Legal Realism and Legal Positivism Reconsidered, 111 ETHICS 278-301 (January 2001)
f.       Not really a legal philosophy of law at all.
g.     Legal Realism can be a version of natural law philosophy of law.

6.     Legal Scholarship. Legal realism is the reality of the practice of law 
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