Legal realism Notes for February 3

Main points

Legal realists hold that questions about what the law is are best answered with predictions about how judges will rule.

We talked about their reasons for thinking this as well as some apparent objections.

Social advantage

Holmes claimed that judges should take considerations of social advantage into account in making their decisions. He argued that they do so anyway without realizing that this is what they are doing. The obvious suggestion is that their decision making would be improved if they were explicit about it, though he did not really explain why he believed this.

We spent a fair amount of time talking about how this would work by considering an imaginary case involving railroads and burning haystacks. The idea was that since the parties to the lawsuit are businesses interests, they will just pass on any costs to their customers. So the right way to decide the case is to minimize the costs for the customers, that is, the society at large.

There was some resistance to deciding cases this way. As Ondrej and Meredith put it, this method ignores personal or property rights. Hold that thought. When we read Ronald Dworkin on taking rights seriously, he’ll make that basic point.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted February 3, 2010.
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