JURISPRUDENCE:JURISPRUDENCE:

A Beginner’s Simple and A Beginner’s Simple and Practical Guide to Advanced Practical Guide to Advanced and Complex Legal Theoryand Complex Legal Theory

Professor Allen Richard KampBA, University of California-Berkeley MA, University of California-Irvine JD, University of Chicago Law School

FORMALISMFORMALISM

The Formalists, who held sway in the second half of The Formalists, who held sway in the second half of the 19th. Century, saw the law as a science, with the 19th. Century, saw the law as a science, with

its first principles derived from case law, and then its first principles derived from case law, and then with particular rules derived from these first with particular rules derived from these first

principles:principles:

FORMALISMFORMALISM Legal Principles are coherent and consistent. Legal Principles are coherent and consistent.

Law was about these principles and their application, Law was about these principles and their application, nothing else.nothing else.

The Formalistic program was to achieve general, The Formalistic program was to achieve general, systematic, and abstract legal doctrine.systematic, and abstract legal doctrine.

THE ATTACK ON FORMALISMTHE ATTACK ON FORMALISM

The succeeding school attacked Formalism. To The succeeding school attacked Formalism. To them, the law was not a set of Formal them, the law was not a set of Formal

doctrines: Legal doctrines operate along a doctrines: Legal doctrines operate along a continuum, between contradictory policies continuum, between contradictory policies

and doctrinesand doctrines

THE ATTACK ON FORMALISMTHE ATTACK ON FORMALISM

The practical application of the law to the attainment of The practical application of the law to the attainment of a just result is valued over symmetry and logic in the a just result is valued over symmetry and logic in the development of legal rules. development of legal rules.

A judge should seek substantial justice, not focus on the A judge should seek substantial justice, not focus on the precise word as a sovereign talisman, seeing every slip as precise word as a sovereign talisman, seeing every slip as fatal fatal

LEGAL REALISMLEGAL REALISM

Legal Realism, which had its heyday between Legal Realism, which had its heyday between World Wars I and II, was enormously World Wars I and II, was enormously

influential, and whose principles (some would influential, and whose principles (some would say, lack of principles) still inform much of say, lack of principles) still inform much of

today’s law.today’s law.

LEGAL REALISMLEGAL REALISM

The law should be congruent with social policy; it should The law should be congruent with social policy; it should promote fairness, efficiency, and prosperity. promote fairness, efficiency, and prosperity.

Society evolves, and the law must evolve with it. The Society evolves, and the law must evolve with it. The Realists thus saw the need to clear away older concepts they Realists thus saw the need to clear away older concepts they saw as legal debris. saw as legal debris.

LEGAL REALISMLEGAL REALISM As befits the term “Realism,” “the law should be based on As befits the term “Realism,” “the law should be based on

fact, factual investigation, and actual practices rather than an fact, factual investigation, and actual practices rather than an abstract theory. abstract theory.

The law should be judged on how it works, not its The law should be judged on how it works, not its theoretical consistency. theoretical consistency.

Rules of law should be tailored (and limited to) specific Rules of law should be tailored (and limited to) specific situations. The more general the law, the worse it is. situations. The more general the law, the worse it is.

LEGAL REALISMLEGAL REALISM

Legal Realists rejected the first principles of Legal Realists rejected the first principles of Formalism. They were successful in demolishing Formalism. They were successful in demolishing

the edifice of the Classical Legal System.the edifice of the Classical Legal System.

THE PROCESS SCHOOLTHE PROCESS SCHOOL

The Process School, which developed in the late The Process School, which developed in the late ‘40’s and the ‘50’s, concentrated on the role ‘40’s and the ‘50’s, concentrated on the role

and functioning of legal institutions rather than and functioning of legal institutions rather than the substantive law: the substantive law:

THE PROCESS SCHOOLTHE PROCESS SCHOOL

It should be determined which legal institution is best to do It should be determined which legal institution is best to do a specific legal task.a specific legal task.

The right institution should do a technically excellent job in The right institution should do a technically excellent job in carrying out its particular functioncarrying out its particular function

The law is a separate, value-free institution, unconnected The law is a separate, value-free institution, unconnected to political and moral considerations. to political and moral considerations.

THE PROCESS SCHOOLTHE PROCESS SCHOOL The courts’ job is not to decide policy issues, to deal with The courts’ job is not to decide policy issues, to deal with

values, or to make choices between substantive legal values, or to make choices between substantive legal interpretations, but to do a professional job of interpreting interpretations, but to do a professional job of interpreting

case and statutory law.case and statutory law.

The courts’ job is not to decide policy issues, to deal with The courts’ job is not to decide policy issues, to deal with values, or to make choices between substantive legal values, or to make choices between substantive legal interpretations, but to do a professional job of interpreting interpretations, but to do a professional job of interpreting case and statutory law. case and statutory law.

CRITICAL LEGAL STUDIESCRITICAL LEGAL STUDIES

Critical Legal Studies (CLS) grew out of Legal Realism. The Critical Legal Studies (CLS) grew out of Legal Realism. The movement built on the Realists’ attack on Formalism and movement built on the Realists’ attack on Formalism and

took it one-step further. Like the Realists, the Critical Legal took it one-step further. Like the Realists, the Critical Legal Scholars were and are leftist, reformist law teachers hostile Scholars were and are leftist, reformist law teachers hostile

to received legal wisdom. to received legal wisdom.

CRITICAL LEGAL STUDIESCRITICAL LEGAL STUDIES

Trashing – demonstrating that an accepted rule of law is Trashing – demonstrating that an accepted rule of law is contradictory and indeterminate.contradictory and indeterminate.

Maintaining that the legal doctrine embodies fundamental Maintaining that the legal doctrine embodies fundamental contradictions in substance and purpose. “Flipping” – contradictions in substance and purpose. “Flipping” – showing that an argument for one position can equally showing that an argument for one position can equally well support its contrary. well support its contrary.

Attack on claims of “neutral principles of law.”Attack on claims of “neutral principles of law.”

CRITICAL LEGAL STUDIESCRITICAL LEGAL STUDIES

Calling into question the accepted categories of the law, such Calling into question the accepted categories of the law, such as public v. private, free contract v. regulation, normal as public v. private, free contract v. regulation, normal contracting versus the deviant/exceptioncontracting versus the deviant/exception

Most of the above is negative – the mission is destructive of Most of the above is negative – the mission is destructive of received legal wisdom. But CLS has a positive program, a received legal wisdom. But CLS has a positive program, a quest for justice and a better society.quest for justice and a better society.

LAW & ECONOMICSLAW & ECONOMICS

The Law and Economics movement seeks to use The Law and Economics movement seeks to use the principles of neoclassical economics to the principles of neoclassical economics to

determine what is actually happening in cases determine what is actually happening in cases and to give a normative guide to decision and to give a normative guide to decision

making. Law and Economics assumes:making. Law and Economics assumes:

LAW & ECONOMICSLAW & ECONOMICS All people are rational maximizes of their satisfactions.All people are rational maximizes of their satisfactions.

Legislation is a “deal” between interest groups. Legislation is a “deal” between interest groups.

Courts interpret and apply these “deals” and provide the Courts interpret and apply these “deals” and provide the authoritative dispute resolution. authoritative dispute resolution.

The common law exhibits a remarkable consistency in The common law exhibits a remarkable consistency in working towards “wealth maximization” and economic working towards “wealth maximization” and economic efficiency. efficiency.

LAW & ECONOMICSLAW & ECONOMICS

The common law (and here is the prescriptive component) The common law (and here is the prescriptive component)

shouldshould maximize society’s wealth. maximize society’s wealth.

The common law can be reduced to a handful of economic The common law can be reduced to a handful of economic formulas. These principles can explain most doctrines and formulas. These principles can explain most doctrines and decisions. decisions.

Law and Economics differs from Classical Legal Thought in Law and Economics differs from Classical Legal Thought in that it is empirically verifiable. The ultimate test of a rule that it is empirically verifiable. The ultimate test of a rule derived from economic theory is not the rule’s elegance, derived from economic theory is not the rule’s elegance, logic, or derivation, but its effect on social wealth. logic, or derivation, but its effect on social wealth.

NEO-TEXTULISMNEO-TEXTULISM

There has been a reaction to, or a counter-There has been a reaction to, or a counter-revolution against, the Legal Realist mode of revolution against, the Legal Realist mode of

interpretation, which often emphasizes context interpretation, which often emphasizes context over statutory and contract language. over statutory and contract language.

The neo-textualists maintain:The neo-textualists maintain:

NEO-TEXTULISMNEO-TEXTULISM

Language has a plain meaning, that is it means what it says Language has a plain meaning, that is it means what it says and does not need interpretationand does not need interpretation

Interpretation and the consideration of evidence outside the Interpretation and the consideration of evidence outside the text leads to error.text leads to error.

Judges should look only at the text of statute or contract and Judges should look only at the text of statute or contract and apply its plain meaning: apply its plain meaning:

NEO-TEXTULISMNEO-TEXTULISM

A writing should be enforced according to its terms. A writing should be enforced according to its terms. Formalist modes of interpretation offer the best prospect for Formalist modes of interpretation offer the best prospect for maximizing the value of contractual relationsmaximizing the value of contractual relations

When parties set down their agreement in a complete When parties set down their agreement in a complete document, their writing should be enforced according to its document, their writing should be enforced according to its terms. terms.

THE ENDTHE END