1. Judge begins with some rule of law as his premise, applies premise to the facts, and makes decision.

What is wrong with this theoretical picture of how a judge decides a case in reality? What is the real picture hidden
behind the theoretical picture? Why is it hidden?

1. Judges dont decide cases based on syllogistic logic, but rather bring their own notions of right/wrong and preconceptions into their decision-making process.

2. The judges rationalizes their answer to a legal issue by framing it as a necessary conclusion to a major premise(law) and a minor premise(fact situation)

3. it's hidden because society would not accept that the law is decided according to the opinion/hunches of an individual

2.

1. Legal Formalism

2. Legal Realism

Explain the differences in the outcome of these two ways of understanding the law.

Formalism - Judge aspires to use syllogistic logic in order to determine the outcome of any case, he wants the case/law to be determinate. Example.Dworkin's Hercules is an all knowing, without bias judge.consists of principles & rules

Realism - The judges decisions/interpratation is the law, and paper law is only a guide for them.

Difference in outcome 

1- Formalism is the application of a statute

2- Realism is the interpretation of a statute.

3. Judge Hutcheson- “The vital motivating impulse for the decision is an intuitive sense of what is right or wrong in the particular case; and the astute judge, having so decided, enlists his every faculty and belabors his laggard mind, not only to justify that intuition to himself, but to make it pass the muster with his critics.”

Explain this decision procedure by using Duncan Kennedy's article

The intuitive sense of right and wrong is comparable to Duncan Kennedy’s “How I want it to come out ( HIWTCO ).”

He consequently endeavors to justify this outcome by legal reasoning.

Kennedy says that legal decisions are deemed valid because of their weight/strength in an argument when applied to the facts rather than which is correct in the abstract.

4. What sort of an ideal judge is presupposed by legal formalism? Why is it impossible to have such an ideal judge? How is the ideal judge different from the real judges?

Explain the difference between legal formalism and legal realism in terms of the ideal and the real judges.

1. The ideal judge in legal formalism is one who lacks personal bias in his decisions, uses a syllogistic formal system, is perfectly rational to make logical deductions, and according to Dworkin: knows the whole body of law to know whether decision X coheres with the body of law

2. Its impossible to have an ideal judge because a judge is never without some sort of personal opinion and cannot possibly know the whole body of law, or be completley unbiased.

3.

- Ideal judges decisions are shaped by law

 - Real judges decisions shape the law, they have motives and use premises/laws to reach their predetermined outcome

5. Justice Holmes said, “General principles do not decide concrete cases.” On what ground can this proposition be maintained? If this proposition is true of general principles, is it also true of general rules? If neither general principles nor general rules can decide concrete cases, how are they decided?

1.this proposition is maintained because the judges opinion is applied to the case, making it the law of that case, rather than basing the law on a set of general principles

2. No, because cases cannot be decide by general rules because they dont have any contextual elements, therefore cases are decided by context

3. Its Decided through the judges opinions which are supported by paper rules

6. Jerome Frank: “The law, therefore, consists of decisions, not of rules.”

Explain this assertion and discuss its relevance to legal realism and legal formalism.

Frank’s statement is essentially the axiom of legal realism, that the law is based solely on the decision of judges.

A legal formalist would take it the other way because to them, the law is solely rules.

7. What is the bad man’s theory of law? How is it different from a good man’s theory of law? Explain their difference with examples.

1- bad man  does not care about either the morality or the logic of the law, hes is immoral.He only obeys the law out of a disinclination to receive the consequences of those actions, not out of a moral recognition that said action is wrong.

 2- Good man is concerned with morality, not just legal consequences, and will act accordingly.

Example - badman steals a private plane, doesnt only becase he knows its against the law and will get caught,but because hes recognizes that the law disallows stealing therefore he appeals to morality thus making him a "goodman"

8. What is the prediction theory of law? How is it related to the debate on legal determinacy vs. legal indeterminacy?

1- The prediction theory is that the law is what the lawyer predicts what the judge will do.

- Hart’s paradox addresses the fact that lawyer tries to predict what the judge will do, then the judge will try to predict what the lawyer thinks he as the judge will to do. Thus making it impossible and creates an indeterminate answer. This could be solved with the faceless average judge which omits ones personal opinions thus allowing lawyers to predict a judge's expected behavior.

- If the prediction theory was possible and there were definite answers to what the Judge is going to decide, then the theory would be determinate.

9. Justice Holmes: “The actual life of the law has not been logic: it has been experience.” Explain this proposition and discuss its relation to legal pragmatism.

Pragmatism determines the validity of theories based on practical consequences.Through experiences, we are able to observe which applications of the law tend to yield the best consequences,rather than logical context. It uses precedent cases as experiences to configure outcomes that relate to similar cases. We must analyze the "life in law" and how it changed throughout time

10. What is legal pragmatism? What is the pragmatic criterion for determining the quality of legal decisions? Why is it difficult to apply this criterion?

Legal Pragmatism

1.     pragmatic consequences: the truth of a claim is dependent on the practical consequences of the claim. A ‘true’ theory predict accurate consequences. There is no direct relationship between theory and reality.

2.     fallibilism: all theories/truths are fallible, nothing is certain.

3.     community: error is dealt with through a community of minds. 2 heads are better than 1. The more and more people there are investigating a issue, the less fallible the resulting answer.

4.     truth: there is no certain truth, there is only working theories.

5.     denial of fact/value distinctions: you cannot derive an ought from an is. Pragmatist want to deny the distinction between fact and value by reducing values to consequences.

2- The pragmatic certerion for determining the quality of legal determinism is ‘what works is right’.

3- This is difficult to apply because ‘what works’ is inconsistent.

11. What is scientific pragmatism? What is legal pragmatism? What is their connection? What is pragmatism, according to Posner? What is pragmatism, according to Dewey? How do their concepts of pragmatism apply to the legal world?

1- Scientific pragmatism studies how useful a theory is. It uses the scientific method to test hypothesis

2- Legal pragmatism evaluates how useful decisions are based on consequences. It decides that the best jurisprudence is theory is the one that has the best results( those that work) its based on a diverse set of data(5)

 3- The connection between scientific and legal pragmatism is essentially looking for what works. Both scientific and legal pragmatism are instrumental.They're the same because experiments are instruments for discovering the truth.

 4- Pragmatism to Posner is not about truth, but rather about belief justified by social need.

5- Dewey says that the judge starts with a vague notion and works backward, using law as instruments for governing and controlling society.

6- whatever works is true

12. What is pragmatic conception of truth? Discuss the question by using the theories of truth proposed by Charles Pierce, William James, and Oliver Wendell Holmes.

The pragmatic conception of truth is that no truth is certain. The closest we come to ‘truth’ is working theories. There’s no truth without an observer. the standard definition of truth is the truth of reality.

Charles Pierce: truth is what is fated to be believed in the long run

William James: truth is what is good to believe

Oliver Wendell Holmes: truth is what survives in the competition among ideas

13. Legal issues often involve competing or contradictory values, for example, certainty vs. flexibility, security vs. freedom of action, property as incentive to labor vs. property as incipient monopoly. Explain how these competing concepts are used in Duncan Kennedy’s article.

Kennedy presents the notion of contradicting values. In Every given case there is matching opposite pairs of contradicting values in which one or the other prevail from case to case.Theres no consistency in prevailing values, so legal disputes are endlessly contradictory. One concept gets stronger and the other weaker, until there is an equilibrium at the boundary.

always those inbetween*

14. There are two ways of understanding legal realism. One of them is to view the judge’s decision as the imposition of his or her subjective view on the case, and the other is to view the same decision as his or her struggle with the sense of justice.

Discuss the plausibility of these two competing views with examples.

Legal realism is basically what the judge decide/interprets the law to be. Both views: cynical and idealist views are plausible.

1. Idealist is what the judge thinks is just

 2. Cynical is based on their self-intrested preference.

Example- If its the judge's birthday that day and decides in favor of the criminal to let him go because hes having such a great day, or if he decides against him because he woke up on the wrong side of the bed, then any person could loose a case because of factors they cant control.

Then if we go with realism and see that judges struggle with justice we can conclude that they have a sense of justice.Therefore we can believe that cases can be decided fairly

Plausability of both? - Both struggle for justice and the subjective view probably influences the judge.

15. What is Dworkin’s rights thesis? What is its connection to legal determinacy and indeterminacy, and legal formalism and realism?

1-The decision in a case is decided (with a single right answer) by whether a decision coheres with the settled law, and if it does, then its the right decision.

2-Through legal determinancy, if the Rights Thesis is correct, then one can be certain of the outcome of a case.legal formalism says there one right answer

3- Right thesis is indeterminate based on the ripple effect and looses its validity because its more than just statutes, it now has other cases involved. The body of law can be changed throughout your present case due to other cases occurring at the same time. There is a gap between the legal event that happened and the adjudication of the decision, therefore the settled law can change over the course of the case.

This makes the determinancy of right thesis impossible because the judge deciding the case is appealing to the new settled law than the one present at the time the legal event happened.

4- Legal formalism states that there is a determinant answer.

5- Legal realism states that there is no determinate answer.

16. What is the entropy of rules? What’s wrong with it? What is its cost? Why is it unjust?

1-Entropy is the amount of chaos in a system, it increases in a legal system as more elements are added such as statutes and decisions.

2- What’s wrong with it is that it creates more uncertainty, as no one can know all the individual laws.

3- Its cost is the transaction cost, example- its easier to dent your car than it is to prevent it, its a delicate structure

4- Its unjust because it creates an inexorable amount of growth in the uncertainty of laws.

Legitimacy Cost

cost of societys trust in the legal system in exchange for changing the law.

Impact on the legitimacy of a judges decision-making ability based on how they decide their case. Either by standing up for their beliefs or to rule correctly and in favor of the law.

Bridlegoose is a judge who describes his decision making process as rolling a dice and then justifying the outcome via established law. This is a realist argument, showing that the outcome of a case is based on the judge’s decision rather than a formalist argument for statute-based, syllogistic law.

Bridlegoose’s role in Hart’s paradox(endless regression of predictions in how judges and lawyers will act) being that the more that Judge Bridlegoose behaves like an average and faceless judge, the more that lawyers will base their predictions on the outcome of a case on the expected behavior of a judge.

the value(resources) of leaving one option to go do another.

Look at Duncan Kennedy’s piece on how he wants to judge the case with the bus drivers’ strike. What is important here is the opportunity cost of how we will decide the case. What does he gain/lose if he decides it one way as opposed to another way? (does not include the opportunity cost of those being judged)

The Cost of Conversion

 Statutes in Positive Law. To a realist, paper rules are just that, and are not enforced. They can be applied, but it is at the judge’s discretion, and they must be applied for it to actually become law. Otherwise it is just words on paper, nothing more.

Rationalization:

Policy Arguments:

The Judge’s Hunch:

Transaction Cost:

Hart says the general principle of the idea of justice is that individuals are entitled to respect of each other to a certain relative position of equality and inequality, also says “treat like cases alike”.

The concept of Justice however is so difficult to define as Kelsen puts it because calling something “just” or “unjust” is a value judgment. Kelsen feels that this proves that Justice is subjective,

but D’Amato disagrees. D’Amato believes that Justice is objective based on the shared experiences we all have, thus producing a collective notion of justice. He also refers to a universal concept of “injustice” that people seem to share, pointing towards Fuller’s argument that being able to recognize injustice is a recognition of what is just itself.

1. The positivist conception of justice is what the law says. Positivism says that justice is external to the law, that justice is separate from the law. Considerations of justice lie outside the “science of law” (Kelsen) and are for religion and social metaphysics to think about. As far as positivism even considers justice, it defines it as subjective and emotional, thus unfit for the rubric of positive law. Kelsen's pure theory of law = is vs. ought...its what the law says

2. The conception of justice in natural law is not necessarily morality..but its appealing to something outside the law, much like a transcendental standard.

Kelsen proves his point by noting that the emotional feelings related to justice cannot be proven by fact, theyre are subjective, and are in disagreement.

D’Amato counters by saying that everyone has experience with just and unjust situations, such as a schoolyard bully. These experiences build a collective sense of justice.