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.
ON PRECEDENT IN LEGAL REASONING
of Publically Available Legal Reasoning
to “originalism” )
in higher court
Variation (Slightly Expansionistic)
be a holding, but isn’t, or any argument in favor of something which is a
holding but isn’t the holding itself.
& Easily Embraceable
be the holding, but the court is concealing it or doesn’t realize what it is
doing. There is nothing wrong with that.
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.
is a subjective feature of what is a holding.
In the end, that characterization is not always clear and many
characterizations are not objective.
INFLUENCE IN CHAIN OF DECISIONS: PRECEDENT OR STARE DECISIS
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
Source of Social Agreement for a Lot of People and a
Lot of Topics
Dissent is Restrained
One Important Source of Social
Essence: Do it now as it has been done
is the past, almost and make noticeable changes only incrementally and slowly.
Up to Down (How Else Could It Be? Opposite is Contradictory)
Linkage of Court Statement
Broader, then Rigid
holding + reasoning
Holdings + What’s Really Necessary to Get There
Broader as to Reason Modification
of Change Flexibility
as Socially Needed [Legal Realism]
#1: Flexibility becomes more and more exactly that as the flex grown. Eventually it transcends itself, and becomes
#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.
do you feel about the Principle of Deception in the Rule of Law? More about this in a moment.
Imaginative, Invention, Construction with Attention to Context
Correctable but only by Conflict
Creativity Must Avoid the Appearance of Subjectivity in Presentation of
Opinions. Has this happened in the
[Originism Applied to Statute?]
more true of advocacy.
Subjectivism Creativity will destroy the foundations of the common law. “Let 100 flowers bloom” is flatly with social
difficult in Subject Version but Impossible in Objective Approach
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.
Hundred Flowers”–a “Large, Diverse Pluralism”–Problem
Are Made on the Principle of Justice as Applied.
Are Made by Panels of Judges Especially Trained for That Role
that All Ideology and Politics be Scrapped.
Are Required to Spend Two Weeks a Year in Advanced Judging School
Your Visual Imaginations and Imagine What Such a Judicial Panel Would Look Like
to Think What Principles Would be Involved and Where Would They Come From?
Realism”: Paradigm: Blood in the Street
stuff, e.g., judicial decision-making
of rational decision-making
of psychology (e.g., of judges)
thusly restricted. Not just about
not attached to the past.
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.
past-that-has-arrived-at-the-present is not necessary for social stability.
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.)
not at what judges say and argue. Look at the facts of a case and
look at what they do.
Hooked up to contemporary pragmatism(s).
Folktales, superstition, & fairy tales not
part of binding precedent. They
social dangerousness in modern civil and civilized society, and
only of other judicial decisions but statutes and law-like customs.
Philip Levine (d. 2015).
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.”
is integral to legal reasoning. Indeed, it is impossible for it not to
to quality in terms of prevailing social/cultural values, and true values. Positivism accepts this, how could it not.
Positivism” is radically false.
of judicial (including quasi-judicial decision-making.
Almost all precedent is binding.
Legal reason is always syllogistic like.
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
is inherently Burkean
law, including judicial and quasi-judicial decisions are political.
change can undermine precedent.
go with social change.
deceptively at first., especially in a larger democracy, where polarization and
uproar always exist.
direct challenges for as long as possible,
for even if possible.
Principle—Strive for it as part of the
law, not as an Ought from outside.
of Legal Realism
Realism and the Twentieth Century
Gays—Best Current Example
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).
Transformation of the Law of Standard Contracts Imposed on Lesser Customers.
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)
natural law philosophy of law.
Originally posted on 02/17/2015 @ 8:24 pm