JURISPRUDENCE: A Beginner’s Simple and Practical Guide to Advanced and Complex Legal Theory Professor Allen Richard Kamp BA, University of California-Berkeley MA, University of California-Irvine JD, University of Chicago Law School

FORMALISM The Formalists, who held sway in the second half of the 19th. Century, saw the law as a science, with its first principles derived from case law, and then with particular rules derived from these first principles:

FORMALISM Legal Principles are coherent and consistent. Legal Principles are coherent and consistent. Law was about these principles and their application, nothing else. Law was about these principles and their application, nothing else. The Formalistic program was to achieve general, systematic, and abstract legal doctrine. The Formalistic program was to achieve general, systematic, and abstract legal doctrine.

THE ATTACK ON FORMALISM The succeeding school attacked Formalism. To them, the law was not a set of Formal doctrines: Legal doctrines operate along a continuum, between contradictory policies and doctrines

THE ATTACK ON FORMALISM  The practical application of the law to the attainment of a just result is valued over symmetry and logic in the development of legal rules.  A judge should seek substantial justice, not focus on the precise word as a sovereign talisman, seeing every slip as fatal

LEGAL REALISM Legal Realism, which had its heyday between World Wars I and II, was enormously influential, and whose principles (some would say, lack of principles) still inform much of today’s law.

LEGAL REALISM The law should be congruent with social policy; it should promote fairness, efficiency, and prosperity. The law should be congruent with social policy; it should promote fairness, efficiency, and prosperity. Society evolves, and the law must evolve with it. The Realists thus saw the need to clear away older concepts they saw as legal debris. Society evolves, and the law must evolve with it. The Realists thus saw the need to clear away older concepts they saw as legal debris.

LEGAL REALISM As befits the term “Realism,” “the law should be based on fact, factual investigation, and actual practices rather than an abstract theory. As befits the term “Realism,” “the law should be based on fact, factual investigation, and actual practices rather than an abstract theory. The law should be judged on how it works, not its theoretical consistency. The law should be judged on how it works, not its theoretical consistency. Rules of law should be tailored (and limited to) specific situations. The more general the law, the worse it is. Rules of law should be tailored (and limited to) specific situations. The more general the law, the worse it is.

LEGAL REALISM Legal Realists rejected the first principles of Formalism. They were successful in demolishing the edifice of the Classical Legal System.

THE PROCESS SCHOOL The Process School, which developed in the late ‘40’s and the ‘50’s, concentrated on the role and functioning of legal institutions rather than the substantive law:

THE PROCESS SCHOOL It should be determined which legal institution is best to do a specific legal task. It should be determined which legal institution is best to do a specific legal task. The right institution should do a technically excellent job in carrying out its particular function The right institution should do a technically excellent job in carrying out its particular function The law is a separate, value-free institution, unconnected to political and moral considerations. The law is a separate, value-free institution, unconnected to political and moral considerations.

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

CRITICAL LEGAL STUDIES Critical Legal Studies (CLS) grew out of Legal Realism. The movement built on the Realists’ attack on Formalism and took it one-step further. Like the Realists, the Critical Legal Scholars were and are leftist, reformist law teachers hostile to received legal wisdom.

CRITICAL LEGAL STUDIES Trashing – demonstrating that an accepted rule of law is contradictory and indeterminate. Trashing – demonstrating that an accepted rule of law is contradictory and indeterminate. Maintaining that the legal doctrine embodies fundamental contradictions in substance and purpose. “Flipping” – showing that an argument for one position can equally well support its contrary. Maintaining that the legal doctrine embodies fundamental contradictions in substance and purpose. “Flipping” – showing that an argument for one position can equally well support its contrary. Attack on claims of “neutral principles of law.” Attack on claims of “neutral principles of law.”

CRITICAL LEGAL STUDIES Calling into question the accepted categories of the law, such as public v. private, free contract v. regulation, normal contracting versus the deviant/exception Calling into question the accepted categories of the law, such as public v. private, free contract v. regulation, normal contracting versus the deviant/exception Most of the above is negative – the mission is destructive of received legal wisdom. But CLS has a positive program, a quest for justice and a better society. Most of the above is negative – the mission is destructive of received legal wisdom. But CLS has a positive program, a quest for justice and a better society.

LAW & ECONOMICS The Law and Economics movement seeks to use the principles of neoclassical economics to determine what is actually happening in cases and to give a normative guide to decision making. Law and Economics assumes:

LAW & 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 authoritative dispute resolution. Courts interpret and apply these “deals” and provide the authoritative dispute resolution. The common law exhibits a remarkable consistency in working towards “wealth maximization” and economic efficiency. The common law exhibits a remarkable consistency in working towards “wealth maximization” and economic efficiency.

LAW & ECONOMICS The common law (and here is the prescriptive component) should maximize society’s wealth. The common law (and here is the prescriptive component) should maximize society’s wealth. The common law can be reduced to a handful of economic formulas. These principles can explain most doctrines and decisions. The common law can be reduced to a handful of economic formulas. These principles can explain most doctrines and decisions. Law and Economics differs from Classical Legal Thought in that it is empirically verifiable. The ultimate test of a rule derived from economic theory is not the rule’s elegance, logic, or derivation, but its effect on social wealth. Law and Economics differs from Classical Legal Thought in that it is empirically verifiable. The ultimate test of a rule derived from economic theory is not the rule’s elegance, logic, or derivation, but its effect on social wealth.

NEO-TEXTULISM There has been a reaction to, or a counter- revolution against, the Legal Realist mode of interpretation, which often emphasizes context over statutory and contract language. The neo-textualists maintain:

NEO-TEXTULISM Language has a plain meaning, that is it means what it says and does not need interpretation Language has a plain meaning, that is it means what it says and does not need interpretation Interpretation and the consideration of evidence outside the text leads to error. Interpretation and the consideration of evidence outside the text leads to error. Judges should look only at the text of statute or contract and apply its plain meaning: Judges should look only at the text of statute or contract and apply its plain meaning:

NEO-TEXTULISM A writing should be enforced according to its terms. Formalist modes of interpretation offer the best prospect for maximizing the value of contractual relations A writing should be enforced according to its terms. Formalist modes of interpretation offer the best prospect for maximizing the value of contractual relations When parties set down their agreement in a complete document, their writing should be enforced according to its terms. When parties set down their agreement in a complete document, their writing should be enforced according to its terms.

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