American Legal Thought Flashcards
What are the key elements of the Legal Process School?
Rule of law
Anti-positivist principle
Neutral principles
Reasoned elaboration
What is the rule of law under the Legal Process School?
That law is a particular kind of process for resolving disputes. It is the process of adjudication that ensures that a court’s decisions are in fact just and good.
What is the anti-positivist principle under the Legal Process School?
That the law is based on general ethical principles and widely shared social goals
Legal materials must not be limited to precedent and statutory text. It should also include those that talk about general ethical principles and important social goals.
How can we achieve Reasoned Elaboration’?
Control and limit case-load of the higher Courts. So we give judges time to write and think properly about the law.
What is Reasoned Elaboration under the Legal Process School?
The best way to keep the law morally proper is for judges to fully articulate the reasoning behind their decisions.
In an era of Reasoned Elaboration, judges neither found law or made it; they reasoned towards it and then articulated their reasoning processes.
What was the driving force behind the Legal Process School?
Nazi Germany’s ability to maintain a functioning legal system despite having a totalitarian system led the Americans to realise any proper legal process must have non-positivist features that prevent it from supporting such totalitarian systems.
What is the gist of American realism?
A skepticism about the role of rules in judicial decision-making, and an insistence that the way to discover what courts do is to examine the law in action, rather than indulge in abstract theory.
What is legal formalism?
The relevant principles of law of a given area can be discerned by simply by surveying the written case law.
Christopher Columbus Langdell believed that the only resources needed to create a science of law was a law library.
How did the American realist view legal rules?
Rules are simply means by which judges justified a result they had previously reached on the basis of intuitive “hunches”.
Therefore, no general principle announced in a case had in reality any broad applicability, for it merely justified the impressionistic judgement of one judge.
On the same set of facts, another judge might make a different judgement based on a different set of rules.
What was the problem with American realism that led to its downfall?
American realism championed pragmatism and saw moral and ethical reasoning as relativistic. After Nazi Germany however, it was not difficult to see Realism as an intellectual precursor to totalitarianism. This suggested that at the heart of law must be a set of widely held social values that could not be explained away.
Under the Legal Process School, how should judges rely on neutral principles in making their decisions?
When deciding on cases presenting competing social values, judges should subordinate their personal preferences and resolve the case.
Further, the Court should either make decisions that accorded with broadly held social values, or refrain from decision-making at all.
Judicial intervention would be premature where the competing social values at stake could not be clearly perceived or articulated.
