American Legal Theory

Question 1

What is legal realism?

Answer 1

Legal realism is centered on how the law is based on how judges actually decide cases, rather than looking to doctrines, rules or principles.

Question 2

What is legal formalism?

Answer 2

Formalising underlying principles discovered from decided cases into a single and determinate system that can be applied mechanically.

Question 3

What is sociological jurisprudence?

Answer 3

A movement for pragmatism as a philosophy of law (as a reaction against mechanical jurisprudence/legal formalism). The interpretation of law is to be informed by social science and our understanding of the actual workings of society.

Question 4

What are the key elements of legal process school?

Answer 4

Rule of law, Anti-positivist principle, Neutral principles, Reasoned elaboration

Question 5

What are the distinctive features of the American legal thought?

Answer 5

written-down government (constitution), natural law (Americans do no embrace positivism), focus on legal equality, no appeal of ethnicity, the “celebrity judge”

Question 6

Under sociological jurisprudence, what should judges prioritise?

Answer 6

Social common values, so that the adjudication can function as a force for moral cohesiveness

Question 7

What do legal realist pay attention to?

Answer 7

1. How a judge was influenced primarily by the presence of particular facts that are not included in those that are the focus of the formal legal doctrine.
2. The judge’s economic and class background

Question 8

What is legal process school?

Answer 8

An action against legal realism, and instead a focus on justice –> arose from the fear of the Nazi German legal system

Question 9

What is the ‘rule of law’ in Legal Process School?

Answer 9

Law is a particular kind of process for resolving disputes, and ensures that court’s decisions are just and good

Question 10

What is ‘anti-positive’ in Legal Process School ?

Answer 10

Elaboration is not limited to precedent and statutory text.

As Wells puts, legal materials should include “general ethical principles and widely shared social goals.”

Question 11

What is ‘reasoned elaboration’ is Legal Process School?

Answer 11

Judges, to the fullest extent possible, are to articulate the reasoning behind their decisions

Question 12

What are ‘neutral principles’ in Legal Process School?

Answer 12

The courts must reason from legal materials using principles that “in their generality and neutrality transcend any immediate result that is involved”.

Question 13

Who is known for Legal Formalism?

Answer 13

Christopher Columbus Langdell, fella who started Harvard Law in 1880

Question 14

Who critiqued Langell’s legal formalism?

Answer 14

Roscoe Pound (fella for sociological jurisprudence)

Question 15

What are the four main philosophical threats in American Legal Thought?

Answer 15

Legal Formalism, Legal Realism, Sociological Jurisprudence, Legal Process Sku

Question 16

How did constitutional review (judicial review) arise in America?

Answer 16

Marbury v Madison, the court held that constitution of the law of the land can be used to sue the president or legislature

Question 17

What were the issues of natural rights trumping legislation in America?

Answer 17

As American society industrialised, there was an increasing social need to pass legislation to address problems that could only be addressed by restricting natural rights. There can be very aggressive constitutional jurisprudence, which is very sceptical of legislation, and may affect natural rights.