Better Deck lol

Question 1

When does law underdetermine a decision?

Answer 1

when a class of legal reasons could lead to more than one outcome a2 realists - also means class of legal reasons is insufficient to explain or cause the CN

Question 2

what’s wrong w/descriptive theses of sophisticated formalism a2 legal realists?

Answer 2

1) L = rationally indeterminate - class of legal R4s justifies multiple outcomes in any given case (esp. re: appellate review cases)
2) adjudication not autonomous - judges must rely on things outside of class of L r4s

Question 3

K Q = what really explains outcomes of cases w// L indeterminate? what does Llewellyn think??

Answer 3

source of indeterminacy = conflicting but equally legit ways to interpret precedent & statutes

Question 4

what are some diff conceptions of legitimacy?

Answer 4

sociological - interp it legit w// Js & JDs accept R4s (there are alt sociological defs but they are descriptive)
philosophical - explains what would justify a practice

Question 5

Christopher Columbus Langdell vs the Realists

Answer 5

both agreed that the study of law needed to be

scientific, but disagreed about the correct way for the science of law to proceed

Question 6

a “positivistic” intellectual culture

Answer 6

natural science is the paradigm of all genuine knowledge

natural science = 1) empiricism 2) experimental method to verify 3) value neutrality 4) cause & fx

Question 7

behaviorism

Answer 7

(John Watson, later B.F. Skinner)

1. Only behavior is observable; the mind is a “black box”
2. Stimulus-response (e.g., Pavlov’s dog)
3. Watsonian behaviorism on the rhetoric of the Realists (but Moore took it very seriously)

Question 8

“Core Claim” of legal realism

Answer 8

judges response primarily to the stimulus of the underlying facts of the
case (“the situation-type”) rather than legal rules and reasons.

Question 9

“Idiosyncrasy Wing” of Realism

Answer 9

(Frank, Judge Hutcheson): idiosyncratic facts about the judge’s
personality determine the response, the “hunch” about how the case should come out.
Frank: Facts + personality of judge = decision
prediction almost impossible

Question 10

“Sociological Wing” of Realism

Answer 10

(Llewellyn, Radin, Oliphant, etc.): social facts (class, socialization, professional experience, etc.) channel responses into predictable patterns.
EG Llewellyn LQ judges try to enforce uncodified norms of each type of commercial activity

Question 11

Holmes’s “The Path of the Law”: the two “fallacies”

Answer 11

(1) “a confusion between law and morality” (459); H. emphasizes “the difference between law and
morals…with reference to a single end, that of learning and understanding the law” (459)
(2) “the only force at work in the development of the law is logic” (465)