The Nature of Law

1. 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?

2. 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)

3. 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.

4. Legal Model Find relevant precedents Determine relevant similarities/differences Facts New Rule of Law Apply rule of law from earlier precedents Decision

5. Mechanical Jurisprudence Term coined by Roscoe Pound in 1908 Judges “mechanically” apply precedents to the facts of cases without regard to the consequences or consulting own biases. Assumes principles are self-evident

6. 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.

7. 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

8. 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

9. 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

10. Political Model Attitudes Role Orientations Institutional Context Judicial Vote

11. Critical Legal Studies (CLS) Radical approach to law Maintains 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.

12. 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?

13. Conflicting Principles Law vs. Politics Independence v. Accountability Judges as Elites Other Elites Good times behind us/yet to come

14. 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.”

15. 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

16. 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

17. Constitutional Interpretation

18. Two Major Problems for Theories of Judging • Countermajoritarian Problem • Government by Judiciary

19. Legal Model Find relevant precedents Determine relevant similarities/differences Facts New Rule of Law Apply rule of law from earlier precedents Decision

20. Political Model Attitudes Role Orientations Institutional Context Judicial Vote

21. Should Judges Be Political? High Politics: Disagreement over fundamental principles Essential to constitutional interpretation Low Politics: Partisanship Antithetical to Judicial Role

22. Constitution is a Partially Democratic Document Based in norm of popular sovereignty Deliberately imperfect representation Divided powers/Checks & Balances Enumerated powers/Broadly stated Federal structure

23. Is An Independent Judiciary Compatible w/ Democracy? Lifetime tenure creates independence, eliminates accountability Lifetime much longer than 18th century Cultural issues create greater tension w/ lack of representation

24. Major Schools of Constitutional Interpretation Strict Construction (Meese) Original Intent/Understanding (Scalia) Contemporary Ratification (Brennan/Marshall/Souter) Representation Reinforcement (John Hart Ely)

25. Strict Construction Politically appealing/intellectually appalling Assumes Constitution has literal meaning/ “Protestant” vision of interpretation Simplistic vision of language Great for easy questions, useless for difficult questions

26. Original Intent/Understanding Authority derives from authorship Focuses on meaning when written (Intent) and ratified (Understanding) Assumes ability to determine original meaning Assumes that original meaning provides answers to current questions Better at vetoes than positive answers

27. Contemporary Ratification Judges must read texts to reflect current problems, understandings Original Intent is hubris Judges’ job is to decide, SC & OI don’t answer many questions Constitution’s meaning must reflect history as unfolding of principles, not frozen Weakness: whose contemporary values?

28. Representation Reinforcement John Hart Ely (former Dean @ Stanford) Judges must ONLY use judicial review to enable political processes Examples: free speech/press/petition/assembly reapportionment anti-discrimination

29. 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.”

30. LinoGraglia “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.”

31. 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.”