Manuscript:
1st Slide
In this respect, legal realism differs from legal formalism. Either theory can be understood in
a descriptive way, prescriptive way, or both ways at once.
a movement that arose in 1920s and 1930s in the US.
Overall, however, realists asserted that often judges make up their mind about the outcome
even before they turn to legal rules; often they will use policy principles and make new law;
some realists asserted that judge’s personality has more impact than legal rules. After making a
decision, judges will justify it with formal legal rules.
Realism is a diverse school of thought and any attempts to homogenize it will distort more than
simplify. When it comes to judicial decision-making, realists had two general theses.18 First,
judges have a preferred outcome of a case even before they turn to legal rules; that preferred
outcome is usually based on some non-legal grounds – conceptions of justice, attributes of
litigating parties (government, poor plaintiff, racial group, etc), ideology, public policy
preferences, judge’s personality, etc. Second, judges usually will be able to find a justification in
legal rules for their preferred outcome. This is possible because the legal system is complex
and often contradictory. Of course, occasionally a judge will come across a preferred outcome
that just “won’t write”, but these are rare.19 Normally, however, judges will find some cases,
statutes, maxims, canons, authorities, principles, etc, that will justify their preferred outcome.
However, it differs from both natural law and legal positivism in that it tries to explain the law
through the real actions of individual lawmakers rather than through ideas about nature
or government. Legal realists argue that in reality, the law is flexible.
Stare decisis simply means that for the sake of certainty, a conclusion reached in one case
should be applied to those that follow if the facts are substantially the same, even though
the parties may be different
His views laid the foundation for the school of jurisprudence known as American Legal Realism,
which maintains that a concern for law is primarily, or even solely, a concern for predicting
judicial decisions
Slide 5
Vertical Stare Decisis
- deals with the duty of lower courts to apply decisions of the higher courts of the
same facts.
- viewed as a binding obligation
Horizontal Stare Decisis
- requires that high courts must follow its own precedents.
- viewed as a policy, imposing a choice not a command
Slide 8
There are 4 Tests whether a court should follow the decisis rule
determine whether the rule has proved to be intolerable simply in defying practical
workability
- consider whether the rule is subject to a kind of reliance that would lend a
special hardship to the consequences of overruling and add inequity to the cost of the
repudiation
-determine whether related principles of law have so far developed as to have the
old rule no more than a remnant of an abandoned doctrine
- find out whether the facts have so changed or come to be seen differently as to
have robbed the old rule of significant application or justification.
There are several factors the Supreme Court weighs when determining whether to
reaffirm or overrule a prior decision interpreting the Constitution.1 First, the Supreme Court may
consider the quality of the decision’s reasoning.2 Another factor that the Supreme Court has
considered when determining whether to overrule a precedent is whether a rule or standard that
the prior case establishes for determining the constitutionality of a government action is too
difficult for lower federal courts or other interpreters to apply and is thus unworkable.3 A third
factor the Supreme Court may consider is whether the precedent departs from the Court’s other
decisions on similar constitutional questions, either because the precedent’s reasoning has
been eroded by later decisions,4 or because the precedent is a recent outlier when compared to
other decisions.
It is difficult to predict when the Supreme Court will overrule precedent because the
Court has not provided an exhaustive list of the factors it uses to determine whether a decision
should be overruled, or explained how it weighs them. Although much about how the Supreme
Court views precedent remains unclear, the Court’s factors for determining whether to retain or
overrule precedent provides the Justices with significant discretion.13 If the Court is unable to
distinguish a precedent from the case before it, the Justices generally attempt to strike a
delicate balance between maintaining a stable jurisprudence on which parties can rely,14 while
preserving sufficient flexibility to correct errors
Slide 9
The Path of the Law," has proved to be one of the most influential works in legal theory. In the
essay Holmes builds on the themes of The Common Law, which included his disassociation of
law from morality and his emphasis on policy over logic. He went on to define the law as a
prediction of what the courts would do in a particular situation. He proposed a "bad man" theory
of justice: a bad man will want to know only what the material consequences of his conduct will
be; he will not be motivated by morality or conscience.
Slide 10
- dominated by two ways of thinking about the philosophy of law — legal
positivism and natural law theory.
Interpretivism has some similarities to both schools of thought and some important
differences.
(Natural Law)
Like all legal philosophies, it contains several diverse points of view, but all share the
basic idea that there is an underlying natural law that serves as the foundation for manmade
law.
(Legal Positivism)
Legal positivism is a school of thought that says laws are made by human societies, not
discovered in nature, and have no inherent connection to ethics or justice, except insofar as
these considerations influence the people who create them.
(Legal Interpretivism)
Legal interpretivism has some similarities with both schools of thought. Like proponents
of natural law, interpretivists agree there is an external purpose for law; they do not, however,
believe laws exist independent of human construction. Like legal positivists, they accept that the
law is a product of human society and politics. Unlike legal positivism, however, interpretivism
contends legal practice is justified by reference to outside values, and argues that the act of
interpretation is actually part of the process of making and defining law.
Interpretivism views law as being interpreted by the practice of lawyers and jurists, and claims
this is the nature of law itself. Unlike other schools of legal philosophy, interpretivism views law
not as something imposed from outside, but as a product of the practice of law. Interpretivists
claim law has a relationship with ethics and morality, but that they are not the same.