The Nature of Law
Is it natural or divinely given -- or is it human?
If human, is it statutory (stated by legislative authority) or is it based in custom or tradition?
How should judges define law?
Civil Law Tradition
Law proceeds naturally from stated core principles.
Law proceeds through deductive reasoning.
Law is based in statutory principles (other than canon law)
Common Law Tradition
Law derived from variety of sources: natural law, custom, statutes.
Law proceeds through inductive reasoning.
Judges are central figures in defining law and legal principles.
Legal Model
FactsFind
relevant precedents
Determine relevant
similarities/differences
Apply rule of law from
earlier precedents
DecisionNew Rule
of Law
Mechanical Jurisprudence
Term coined by Roscoe Pound in 1908
Judges “mechanically” apply precedents to the facts of cases without regard to the consequences or consulting own biases.
Assumes principles are self-evident
Legal Realism
Oliver Wendell Holmes Jr. - “The life of the law has not been logic, it has been experience.” (1881)
Legal interpretation reflects judges’ experience and biases.
Law is not self-evident, but is best prediction of judges will decide.
Sociological Jurisprudence
Roscoe Pound’s preferred alternative
The "taught legal tradition“ of the common-law contains important concepts which judges must apply in ways that reflect changes in society
Judicial Behavior Model
Glendon Schubert (1959)
Sought to explain differences in judicial decisions by focusing on values and Supreme Court justices.
Uses quantitative models to explain variance at highest, most discretionary level
Role Theory
J. Woodford Howard (1977)
Examines U.S. Courts of Appeal, discovers that judges view job differently
Larger element for institutional demands and institutional constraints
Political Model
Attitudes
Judicial Vote
Role Orientations
Institutional Context
Critical Legal Studies (CLS)Radical approach to law
Maintains that law and politics are indistinguishable from one another.
Most popular among legal historians, esp. those who trace tandem development of legal and economic institutions, and those engaged in critical race and feminist theory.
Myth of Judicial Activism
Transforms policy differences into “neutral” arguments about role of courts
Assumes that law can be made free of politics
Can law ever be free of values?
Conflicting Principles
Law vs. Politics
Independence v. Accountability
Judges as Elites
Other Elites
Good times behind us/yet to come
Sandra Day O’Connor
“Elected officials routinely score cheap points by railing against the ‘elitist judges’ who are purported to be out of touch with ordinary citizens and their values … using judges as punching bags presents a grave threat to the independent judiciary.”
Tom Parker, Judge, Alabama Supreme Court
“the liberals on the U.S. Supreme Court look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state.”
commenting on Roper v. Simmons – no death penalty for minors
Tom Parker, Judge, Alabama Supreme Court
“Courts must recognize that the state is but one of several spheres of government, each with its distinct jurisdiction and limited authority granted by God.”
Dissent in 2005 child custody case
Constitutional Interpretation
1. Countermajoritarian Problem
2. Government by Judiciary
Two Major Problems for
Theories of Judging
Legal Model
FactsFind
relevant precedents
Determine relevant
similarities/differences
Apply rule of law from
earlier precedents
DecisionNew Rule
of Law
Political Model
Attitudes
Judicial Vote
Role Orientations
Institutional Context
High Politics: Disagreement over fundamental principlesEssential to constitutional interpretation
Low Politics: PartisanshipAntithetical to Judicial Role
Should Judges Be Political?
Constitution is a PartiallyDemocratic Document
Based in norm of popular sovereignty
Deliberately imperfect representation
Divided powers/Checks & Balances
Enumerated powers/Broadly stated
Federal structure
Is An Independent Judiciary Compatible w/ Democracy?
Lifetime tenure creates independence, eliminates accountability
Lifetime much longer than 18th century
Cultural issues create greater tension w/ lack of representation
Major Schools of Constitutional Interpretation
Strict Construction (Meese)
Original Intent/Understanding (Scalia)
Contemporary Ratification (Brennan/Marshall/Souter)
Representation Reinforcement
(John Hart Ely)
Strict Construction
Politically appealing/intellectually appalling
Assumes Constitution has literal meaning/ “Protestant” vision of interpretation
Simplistic vision of language
Great for easy questions, useless for difficult questions
Original Intent/UnderstandingAuthority derives from authorship
Focuses on meaning when written (Intent) and ratified (Understanding)
Assumes ability to determine original meaning
Assumes that original meaning provides answers to current questions
Better at vetoes than positive answers
Contemporary RatificationJudges must read texts to reflect current
problems, understandings
Original Intent is hubris
Judges’ job is to decide, SC & OI don’t answer many questions
Constitution’s meaning must reflect history as unfolding of principles, not frozen
Weakness: whose contemporary values?
Representation Reinforcement John Hart Ely (former Dean @ Stanford)
Judges must ONLY use judicial review to enable political processes
Examples:
free speech/press/petition/assembly
reapportionment
anti-discrimination
Robert Bork
“Grutter and Gratz accepted the transparent false-hoods of the University of Michigan about the need for racial diversity in the student body to provide a quality education … utterly ignoring the flat prohibition of racial discrimination in the 1964 Civil Rights Act.”
Lino Graglia“Virtually every one of the Court’s
rulings of unconstitutionality over the past 50 years – on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools … discrimination on the basis of sex … have reflected the views of this same elite.”
Senator Al Franken
“If you have a credit car, if you watch TV, if you file insurance claims, if you work … then you interact with corporations that are more powerful than you are.”