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Wednesday, January 10, 2024
Personal Positivism
In public remarks last year, Justice Kagan took a position on what the law is not. “If one judge dies or leaves a court, and another judge comes in, and all of a sudden the law changes on you,” Kagan argued, then, “you know, that just doesn’t seem a lot like law.” This basic view is widespread, even commonplace.
Yet we all know that changes in judicial personnel do in fact yield major legal transformations. So while Kagan’s comment may reflect an attractive moral view of what the law ought to be, it doesn’t well describe what law actually is.
In a draft article (“A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary”), I take seriously the idea that the personal rules of individual judges constitute the law. This point is usually covered over by other features of legal practice, such as frequent agreement among judges and personal rules directing convergent behavior. But recent events help reveal the law’s personal foundations.
Seeing the fundamental role of judges’ personal rules is a bit like removing a computer’s casing and looking at the wires and circuit boards that lie inside: the appearance may be strange—it “just doesn’t seem a lot like” a computer, to use Kagan’s words—but the internal workings are closer to the computer’s essence.
To a great extent, legal practice already recognizes as much. In cases on everything from the Second Amendment to Chevron deference, sophisticated advocates home in on the expressed views of specific justices—even if those views are found in lower court rulings, dissents, or law review articles. Court opinions often follow the same sources. And commentators frequently measure the rise of methods like textualism and originalism by counting heads.
This personalized view of the law addresses some of the most fundamental controversies facing our legal system. It counsels that there is still genuine law in contested cases, that the law of the United States is now largely defined by a conflict between two groups of judges, and that court reformers should harness judicial individuality rather than ignore it.
While this project has already benefited from a lot of comments and conversations, it is still in draft. Additional thoughts are most welcome!
Cross-posted from Re's Judicata.
Posted by Richard M. Re on January 10, 2024 at 01:40 PM | Permalink
Comments
Interesting.
Yet, you call it personal. Suggesting that it is personal in subjective terms. This is not so. This is something else:
All judges, even if reaching different results, are bound by certain methods or approaches. Systematically so. Different results, is secondary in fact, to the approach. Methods. Systematic interpretation etc.....That is what counts.
So, it is not different personal views. It is about, different objective views (paradoxically). We shall demonstrate it:
Suppose that Joe has been damaged or injured in his nee, in certain accident. He goes to an expert. Medical expert. The latter, checks him. Asserting certain damage, and let's say 30 per cent degree of disability. Now, he would now address with such findings, the insurance company. Surly they wouldn't be happy with it. He would have to be checked by their own medical expert. Typically,"miraculously" the latter would reach different conclusion. That it is about bit different damage, and only 10 per cent disability let's say.
Who is right ? Who is wrong ? Both are experts. Well authorized. Are they both objectives ? Yes:
It is not about different results. Objective, doesn't imply or suggests, one and only one result. But, the method. The reasoning. The references. Being based on commonly accepted and verified medical literature.
So, it is systematic. Transparent. Methodological. Based on predicted and well accepted protocols.
The same for judges. This is not personal in the narrow sense. But, rather objective in methodological terms, and personal only in professional terms one could suggest (somehow, bit complicated right now).
Thanks
Posted by: El roam | Jan 12, 2024 4:27:08 AM
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Posted by: wordle unlimited | Jan 11, 2024 1:22:47 AM
What we still largely teach in law school, and test on law school exams as well as on bar exams, is doctrinal law and its various gradations and subcategories (e.g., doctrinal formalism, legal formalism, rule formalism, etc.).
In other words, the formal rules of law derived from precedent can with some accuracy predict the outcome of many cases. Or, as Cardozo explained, “precedents have so covered the ground that they fix the point of departure from which the labor of the judge begins.”
“If they are plain and to the point, there may be need of nothing more,” he says, noting that in many situations doctrine largely determines the outcome, and there’s little reason to consider other factors.
But I think good law professors do go on to explain that in the many cases where the precedents aren’t clear and/or conflict, one must be more realistic. This means taking into account the realities of law and people in the real world, therefore adding legal realism to doctrinal law.
In such situations, wise lawyers will of course take into account various legal realities including what this article calls “personal rules of individual judges,” based not only upon individual experience, but often upon factors such as gender, race, religion, upbringing, close friends, professional and personal life experiences, location of residence, etc. - especially as these “personal rules” may be gleamed from prior written opinions and questions asked from the bench.
Virtually all law professors and practitioners seem to agree that knowing the so-called rules of law (doctrinal law), and the realities which in addition to the rules often affect how a judge will rule (legal realism), are important to learn because they help predict how a judge will rule, and also what arguments are likely to be the most persuasive.
But a third theme or philosophy which is increasingly being taught at law schools - critical legal theory (critical legal studies, critical race theory, critical feminist theory, etc.) - does not seem to been proven by the method usually used to test new theories ( from Einstein’s general relativity to theories in economics and other disciplines): its usefulness in predicting what will occur in the future.
So while few would doubt that studying doctrinal law, as well as legal realism, helps to predict the outcome of cases, there seems to be no showing or consensus that studying critical legal theory or things like it helps law students to accurately predict the outcome of cases - to know the law.
For, as Holmes's famously explained, the law is prediction of what the courts will do in fact, and nothing more pretentious.
So why do some law professors teach it, and isn’t it time someone tried to show whether or not it even works.
Posted by: LawProf John Banzhaf | Jan 10, 2024 4:52:00 PM
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