Theories of adjudication

Question 1

Legal formalism

Answer 1

law = a closed and gapless system (like Bentham wanted)

Question 2

American Realism

Answer 2

law is not made according to rules. Moral decision of judges are disguised as logic

Question 3

Scandinavian realism

Answer 3

focussed on how law changes behaviour

Question 4

What was Oliver Wendell Holmes

Answer 4

A rule sceptic

Question 5

What did Oliver Wendell Holmes think about the law

Answer 5

Evolutionary - sources in society - already exists before its ruled on

Question 6

What did Oliver Wendell Hoilmes think about statutes

Answer 6

They’re not law until they’re ruled on in court

Question 7

What does a lawyer do according to Wendell Holmes

Answer 7

Predicts the decision a court will make. Law is a prediction of what the court will decide.

Question 8

Why was Oliver Wendell Holmes so hung up about kaw being the decisions of judges

Answer 8

Because he was a judge and had a messiah complex

Question 9

Why did Wendell Holmes think the law is never fully logical

Answer 9

Because of evolution - there’s a lag between the reality and its reflection by the courts.

Question 10

What did Wendell Holmes say about the changing content of established legal doctrines

Answer 10

Result of post-hoc rationalisation - you take a doctrine and make it fit current circumstances.

Question 11

Who’s was the bad man thesis

Answer 11

Oliver Wendell Holmes

Question 12

Where does the bad man thesis fall down

Answer 12

Good people want to know how to order their affairs, business, wills, charity

Question 13

What did Wendell Holmes propose

Answer 13

That judges should openly legislate with regard to social policy

Question 14

Problems with Wendell Holmes theory technically

Answer 14

Not very disciplined at separating is from ought

Question 15

Problems with Wendell Holmes’ theory substantively

Answer 15

Lgeal certainty

Question 16

What was Karl Llewellyn

Answer 16

Rule sceptic

Question 17

What did Llewellyn think about the uncertainty of law

Answer 17

It’s a good thing - judges have (and shoudl have) discretion.

Question 18

What did Llewellyn propose

Answer 18

Use of the “grand style”: judges test decisions against wisdom to align law with justice

Question 19

What’s the problem with the grand style?

Answer 19

Not all judges are good. Judges only have a certain flavour of justice. Judges have a shared concept of morality - all from same background.

Question 20

What was Jerome Frank

Answer 20

A fact sceptic

Question 21

What was Jerome Frank’s theory

Answer 21

Judges and juries are prejudiced, they break down the distinction between facts and rules to obtain the result they want

Question 22

What did Jerome Frank call juries

Answer 22

Hopelessly incompetent fact-finders (they’re not specialised and they’re not accountable)

Question 23

Example of judges deciding the desired result and working back (fact scepticism)

Answer 23

Drunk driving - difference in sanctions across states reflected in difference in charge levelled.

Question 24

What was the underlying concern of Dworkin’s work

Answer 24

What justifies the use of force by a state against its citizens

Question 25

What’s Dworkin’s definition of law

Answer 25

Rights and responsibilities of citizens flowing from past political decisions

Question 26

When does Dworkin think coercion is justified

Answer 26

Only to enforce rights and responsibilities. Dependent on like treatment in like situations

Question 27

What does Dworkin think about the certainty of law

Answer 27

All legal questions have a correct or incorret answer. There is no question the law cannot answer

Question 28

What does Dworkin think the law is made up of

Answer 28

Rules (static, known) and principles (found by applying reason to the law as a whole)

Question 29

When, according to Dworkin, is a principle legal

Answer 29

When it forms part of the soundest theory of law

Question 30

What is the soundest theory of law in anglo-american systems

Answer 30

Law as integrity: internal consistency

Question 31

How does Hercules interpret the law

Answer 31

1. Pre interpretive: identify the relevant law (past decisions, statute), 2. Interpretive, look for an explanation that fits that law the best and is most appealing (with reference to values) 3. post interpretive, revise conception of what the rules stand for in order to reflect the best theory available.

Question 32

How does Dworkin see the collaboration of judges on the law as working

Answer 32

Like a chain novel - retain consistency, make it the best it can be

Question 33

What’s a case that illustrates the use of principles in decision making

Answer 33

Riggs v Palmer - Will left money to murderer

Question 34

Problems with Dworkin’s thoughts on coercion

Answer 34

The state’s coercion actrually has v little to do with day to day life

Question 35

What’s the problem with Riggs v Palmer

Answer 35

More easily explainable in Wendell Holmes’ terms -a principle conflicted with a rule and the principle won.

Question 36

Problem with law as integrity?

Answer 36

Law is just too disorderly to be reconciled to an internally coherent system - different principles are relevant in different branches of the law

Question 37

Fit?

Answer 37

Got to be really lax to accommodate

Question 38

Appeal?

Answer 38

Based on subjective values - so really there’s no right answer

Question 39

Hart on adjudication

Answer 39

Open textured language of law leads to penumbra of uncertainty. Judges use their discretion - judges make law in hard cases.

Question 40

Alexander & Kress on legal principle

Answer 40

The case for the existence of legal principles fails miserably

Question 41

What case did Dworkin use to illustrate the difference between policy and principles

Answer 41

Spartan Steel

Question 42

Why does Dworkin think that judges should not be able to consider policy

Answer 42

Because they’re not elected

Question 43

Another reason that judges shouldn’t be able to make law

Answer 43

They’re not vindicating a right, they’re punishing something that wasn’t established as wrong until the time of judgement (Hercules’ prospectivity)

Question 44

What does Dworkin’s theory seem to suggest (as a criticism)

Answer 44

That IF there is consistency in the principles divined by judges using the fit and justification method and IF this can be explained by their social values as a result of their background THEN the law of white middle class men is the absolute law. Fit and justification will just perpetuate this.

Question 45

What does Dworkin think about the value / funtion of legal theory

Answer 45

Lgeal theory, if it is to be a worthwhile activity, will be inseperable form the process of interpreting and applying the law. It must be aimed at giving PRESCRIPTIVE guidance.

Question 46

Dworkin’s interpretive attitide

Answer 46

Assumes that law has a general meaning or purpose (accords with Fuller). Takes the insider view. Presents the law in its most appealing light.

Question 47

How Dworkin would interpret courtesy

Answer 47

1. Couresy includes holding door open and doffing your cap. 2. The reason for courtesy is to show respect. 3. I will doff my hat to returning soldiers, but courtesy doesn’t require that I do it for the drunk on the corner