Early Developments

Question 1

Courts’ use of social science

Answer 1

i. What can social science offer the law?
ii. What can it offer legal actors? Ie judge, jurors
iii. The goal is to make social science useful to law

Question 2

Jurisprudence: Formalism

Answer 2

i. God given rules that don’t change
ii. Know law and facts and outcome can be determined
iii. Ie Plug and play—>Judges are cog in machine (fungible)–>their personal views/experience didn’t matter

iv. Case examples:
1) US v. EC Knight= monopoly case (Sherman Act)

v. Darwin and Freud led people to question formalism
1) Ie Darwin led people to think maybe law evolves too
2) Freud led people to think of judges as people

Question 3

Anti-Formalists: OW Holmes

Answer 3

1) Judges experience, not just logic, determine cases

			2) 8th amendment-->cruel punishment--> words haven't changed but views have--> ie flogging no longer acceptable
			3) Legal texts are subject to interpretation

			4) Legislative function of judges= OWH thought judges should defer to legislatures, not legislate from the bench
			5) OWH opened door to use of social science-->judges need to know how world works

Question 4

Anti-Formalists: Brandeis

Answer 4

1) First to implement social science in legal argument
a) Muller v. Oregon (restrictions on hours worked by women)
b) Had to show that Oregon legislature acted rationally
i) Brandeis showed that all these experts believed this so therefore it is reasonable–>deductive approach
c) B/C of Lochner, had to distinguish women from men
i) SCOTUS agreed that future generations would be affected
SCOTUS cited “other than legal sources” for the first time

			2) Bunting
				a) Brandeis argued that men and women should be protected from extensive work hours
					i) Court agreed without mentioning Lochner Brandeis therefore undid Lochner piece by piece

Question 5

Anti-formalist: Roscoe Pound

Answer 5

1) Sociological jurisprudence
a) Legal rule is general guide, with wide limits
b) Does the law work? Utilitarian perspective
Using social science allows social science to match up with law on the books

Question 6

West Publication Company

Answer 6

led to downfall of formalism

1) Allowing people to see same fact pattern in different jurisdictions with different outcome with published reports
Caused judges to question efficacy of formalism