The Nature of Law

Is it natural or divinely given -- or is it human?

If human, is it statutory (stated by legislative authority) or is it based in custom or tradition?

How should judges define law?

Civil Law Tradition

Law proceeds naturally from stated core principles.

Law proceeds through deductive reasoning.

Law is based in statutory principles (other than canon law)

Common Law Tradition

Law derived from variety of sources: natural law, custom, statutes.

Law proceeds through inductive reasoning.

Judges are central figures in defining law and legal principles.

Legal Model

FactsFind

relevant precedents

Determine relevant

similarities/differences

Apply rule of law from

earlier precedents

DecisionNew Rule of Law

Mechanical Jurisprudence

Term coined by Roscoe Pound in 1908Judges “mechanically” apply

precedents to the facts of cases without regard to the consequences or consulting own biases.

Assumes principles are self-evident

Legal Realism

Oliver Wendell Holmes Jr. - “The life of the law has not been logic, it has been experience.” (1881)

Legal interpretation reflects judges’ experience and biases.

Law is not self-evident, but is best prediction of judges will decide.

Sociological Jurisprudence

Roscoe Pound’s preferred alternative

The "taught legal tradition“ of the common-law contains important concepts which judges must apply in ways that reflect changes in society

Judicial Behavior Model

Glendon Schubert (1959)Sought to explain differences in

judicial decisions by focusing on values and Supreme Court justices.

Uses quantitative models to explain variance at highest, most discretionary level

Role Theory

J. Woodford Howard (1977)Examines U.S. Courts of Appeal,

discovers that judges view job differently

Larger element for institutional demands and institutional constraints

Political Model

Attitudes

Judicial Vote

Role Orientations

Institutional Context

Critical Legal Studies (CLS)Radical approach to lawMaintains that law and politics are

indistinguishable from one another.Most popular among legal historians,

esp. those who trace tandem development of legal and economic institutions, and those engaged in critical race and feminist theory.

Myth of Judicial Activism

Transforms policy differences into “neutral” arguments about role of courts

Assumes that law can be made free of politics

Can law ever be free of values?

Conflicting Principles

Law vs. PoliticsIndependence v. AccountabilityJudges as ElitesOther ElitesGood times behind us/yet to

come

Sandra Day O’Connor

“Elected officials routinely score cheap points by railing against the ‘elitist judges’ who are purported to be out of touch with ordinary citizens and their values … using judges as punching bags presents a grave threat to the independent judiciary.”

Tom Parker, Judge, Alabama Supreme Court

“the liberals on the U.S. Supreme Court look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state.”

commenting on Roper v. Simmons – no death penalty for minors

Tom Parker, Judge, Alabama Supreme Court

“Courts must recognize that the state is but one of several spheres of government, each with its distinct jurisdiction and limited authority granted by God.”

Dissent in 2005 child custody case

Constitutional Interpretation

1. Countermajoritarian Problem

2. Government by Judiciary

Two Major Problems for

Theories of Judging

Legal Model

FactsFind

relevant precedents

Determine relevant

similarities/differences

Apply rule of law from

earlier precedents

DecisionNew Rule of Law

Political Model

Attitudes

Judicial Vote

Role Orientations

Institutional Context

High Politics: Disagreement over fundamental principlesEssential to constitutional interpretation

Low Politics: PartisanshipAntithetical to Judicial Role

Should Judges Be Political?

Constitution is a Partially Democratic Document

Based in norm of popular sovereigntyDeliberately imperfect representationDivided powers/Checks & BalancesEnumerated powers/Broadly statedFederal structure

Is An Independent Judiciary Compatible w/ Democracy?

Lifetime tenure creates independence, eliminates accountabilityLifetime much longer than 18th centuryCultural issues create greater tension w/ lack of representation

Major Schools of Constitutional Interpretation

Strict Construction (Meese)Original Intent/Understanding (Scalia)Contemporary Ratification

(Brennan/Marshall/Souter)Representation Reinforcement

(John Hart Ely)

Strict Construction

Politically appealing/intellectually appallingAssumes Constitution has literal meaning/

“Protestant” vision of interpretationSimplistic vision of languageGreat for easy questions, useless for difficult

questions

Original Intent/UnderstandingAuthority derives from authorshipFocuses on meaning when written (Intent)

and ratified (Understanding)Assumes ability to determine original

meaningAssumes that original meaning provides

answers to current questionsBetter at vetoes than positive answers

Contemporary RatificationJudges must read texts to reflect current

problems, understandingsOriginal Intent is hubrisJudges’ job is to decide, SC & OI don’t

answer many questionsConstitution’s meaning must reflect history

as unfolding of principles, not frozenWeakness: whose contemporary values?

Representation Reinforcement John Hart Ely (former Dean @ Stanford)Judges must ONLY use judicial review to

enable political processesExamples:

free speech/press/petition/assemblyreapportionment anti-discrimination

Robert Bork“Grutter and Gratz accepted the

transparent false-hoods of the University of Michigan about the need for racial diversity in the student body to provide a quality education … utterly ignoring the flat prohibition of racial discrimination in the 1964 Civil Rights Act.”

Lino Graglia“Virtually every one of the Court’s

rulings of unconstitutionality over the past 50 years – on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools … discrimination on the basis of sex … have reflected the views of this same elite.”

Senator Al Franken

“If you have a credit car, if you watch TV, if you file insurance claims, if you work … then you interact with corporations that are more powerful than you are.”