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PSYC 3390

PHIL 3040 Test 2 Study Notes Law as a Product of Court Decisions Jerome Frank Lec 7 Pg. 73 Do judge’s power and rights include making and changing law? 1. Conventional View: law-making as the proper domain of the legislature’s power and judiciary’s job is simply to apply the law -judges are simply living oricles of the law (ie. Merely speaking the law) 2. Minority View: (Frank`s view) holds that judges DO make and change laws -Frank argues that the conventional view is based on a legal illusion, which is characterized by a desire of control, certainty and predictability which sees the law as a matter of deductive calculation from the basic principles Pgs. 75 & 76 -case of the Blue and Grey Cab Co. that had a contract with A + B Railroad Co. -exclusive priviledge of soliciting taci-cab business -the Purple Taxi Co. ignored the contract and Blue and Grey sued BUT Grey and Blue knew that they would lose the case in their state (Kentucky) so they made another company in Tenessee because their lawyer thought that they would win there --Kentucky had anti-monopoly laws which made their contract viod -this allowed them to take their case to the federal court and win --9 judges made the decisions ---there is an added level of complexity in the levels of the courts where there is a lot of unpredictability about what the 9 judges will decide -Frank`s point here is to show different levels of legal systems where a variety of factors comes to influence the court`s decisions in different ways --that is why the Jone`s lawyer, despite his plan, was uncertain about the court ruling -Frank`s point is to show that the law, prior to the decision of the Supreme Court, was indeed unsettled and no one could know what the court would decide -``to speak of settled law as governing that controversy, or as fixed legal rights of those parties as ante-dating the decisions of the Supreme Court is mere verbiage`` --ie. The law is judge`s decisions on cases ON TEST 2: PG.77 FRANK`S DEFINITION OF LAW: -``for any particular lay person, the law, with respect to any particular set of facts, is the decision of a court with respect to those facts, so far as that decision affects that particular person. Until a court has passed on those facts, no law on that subject is yet in existence`` -contrary to the mechanical view, judges make decisions not by gathering information as premises of an argument that would produce a conclusion previously unknown, but rather reach decisions based on their psychology, gender, culture, politics and background -they already have a conclusion that they then find premises to substantiate it -PS. Frank`s realism boarders cynicism -eg. 2 Drunk driving cases in 2 different states can produce 2 different outcomes for the same case --therefore, even more bluntly, Frank argues that judges make decisions based on their HUNCHES so whatever produces the judge`s hunches makes the law -what produces the judge`s hunches involves a multiple and complex set of factors from the judges politics, economics and moral prejudices to her idiosyncracies and from her past to her sympathies and apathies When does a judge make law….legal realists give 2 different answers: 1. John Gray, a legal theorist, holds that judges make law when they make or change rules -law-making is legal rule-making -the law is simply the rule of a decision with which the court laid down 2. Judge Holmes holds that: law is made up not of rules for decisions laid down by the courts but of the decisions themselves -there is nothing between such decisions and what we know as law Lec 8 Frank Continued -the role of the judge`s decision as the source of law is further stressed when in the last section of the reading; Frank denies the significance of precedence in law-making -argues that precedence are illusory because we can never exactly know of the judge`s experience in the last case --therefore, the decision isn`t made on the precedent that can be known but based on the judge`s ``personal bent`` in terms of the factors already mentioned influencing her decision -later, Frank expresses skepticism about the possibility of objectively defining law , as formalists claimed, and concludes that such controversies concerning the definition of law are a futile and silly word battle -legal rules can`t be viewed as settled and definite standards --instead, they should be viewed as having a definite range of meanings, where the limit of the range is determined as much by psychology facts as by logic -he proposes that we refrain from using the vague term `law` and instead state directly what is at issue, namely: 1. specific court decisions 2. how little they are predictable and uniform 3. how they are made 4. how far this process should be improved -Frank also regrets the label legal realism for 2 reasons: 1. Realism in other, more established disciplines such as philosophy has an entirely unrelated meaning 2. the label enabled critics of this position to homogenize the diverse position of its advocates -this misconception, then, lead the easy charge that the realist school included verity of inconsistent ideas -hence, he suggests that a better label would be constructed skepticism Frank divides constructed skepticism into 2 groups: 1. Rule Skeptics -who see the problem as formal legal rules (ie. Paper rules) as too unreliable to predict the court`s decisions -since behind the proper rule they see a set of real rules that describe the actual guides according to which judges make their decisions and are hence more trustworthy for prediction of future cases -the judge at his best is an arbitrator -- a sound man who strives to do justice to the parties by exercising a wise discretion with reference to the particular circumstances of the case 2. Fact Skeptics -go beyond rule skeptics and argue that because of the elusiveness of the facts behind the court`s decision, it is impossible to predict future decision in most lawsuits that haven`t been tried yet --therefore, they argue that the pursuit of the goal of legal certainty is futile and instead turn their attention to the pursuit of increased judicial justice -Now, if according to Frank, law is unsettled and may be interpreted in various ways by different judges, then the expectation that citizens be held to reasonable standards and treated fairly require legal reform --ie. The law must be promulgated so that people know what is law but since no one knows what law is, it is not fair -reform of the legal system was the main activity that legal realists devoted their work to -their proposal for reform was to turn law`s weakness into a solution by assigning to the judges the responsibility of law-making based on their criteria of public interests and its changing interests and needs The Problem: -legal realists` argument for reform weren’t as detailed and rigorous as their criticism of conventional legal theories -also, there is tension between their advocacy of judge`s responsibility to make the law based on the public interest and their changing values and needs on the one hand and their convention that law exists even if it is not moral -so the general feeling of the work of legal realists is that they were successful at drawing attention to the shortcomings of the classical view but didn’t provide solution to the problems --therefore, the view results in skepticism without a way out Lec 9 Dimock Contract Law -contract law covers different agreements among individuals and legal persons with the aim of deciding which agreements are legally binding, the rights and duties of the parties of the contract and the consequences of breach or the contract for both sides -these questions then decide not in abstract but in specifics of each case in which they will be wealth-maximizing -again, the alternative approach to contract law, namely compensatory justice approach, is dismissed as incapable of making sense of the fact that a common award in contract law is expectation damages (ie. When a person who did not breach gets exactly what he would have received if there had not been a breach) -Dimock argues that because in such cases there is nothing to rectify as a matter of compensatory justice, contract law should be argued among economic lines Property Law -property rights are either assigned by agreement or by authoritative settlement mimicking private agreement -need legal protection after they are assigned -3 general ways in which property is protected: 1. property rules= protect the entitlement of the right holder 2. liability rules= involve diminishing the value of the entitlement without the agreement of the right holder provided that he be provided for the reduction in value 3. inalienability rules= which protect inalienable rights that are basic, non-transferable rights like one`s right to own body Criminal Law -covers both transgression aimed at the destruction and removal of property and crimes against the person (eg. Theft, fraud, murder etc) -as a measure against violence, criminal law is more conducive to economic analysis and efficiency standard because they promote productive life and labour When should we use criminal law? -coercion should be used to support the operation of the market How much should be spent of control? -the answer falls within the domain of politics but for the perspective of wealth-maximization, investment in crime control must be efficient What level of enforcement and system of penalties is most effective? -penalties should be set to induce compliance with the law, which depends on the severity of the threatened penalty and the likelihood that it will be inflicted -given this survey of 4 branches of law, Dimock concludes that wealth-maximization is an attractive normative model in law because it can explain why crimes are always wrong and why moral promises like promise keeping, truth telling, altruism and so on are important -she cites Posner where he runs through a series of virtues to make the case that efficiency explains them all -Dworkin denies that wealth is a value because if I were, then moving from one state in society to another distinguished by wealth would be a good change in so far as that change goes --Dimock rejects this objection arguing that it mistakes wealth-maximization principles as an intrinsic good, but its advocates take it only as an instrument of good, a good in service of something -Dworkin`s example aimed at showing how wealth-maximization is not a value analyzed as confusing a desire to want something with having the ability to pay one --for, in so far as the parties in the exchange are concerned, it is their basic needs that should count and not their ability to pay for them ---indeed, this reveals the inherent bias in law and economic advocates in favour of the wealthy -another strong criticism is that the normative criteria of law and economics approach that promotes efficiency makes the enjoyment of basic rights and liberties contingent upon cost- benefit analysis --this reply is confusing and obscures the matters -human rights, including individual rights, are legal statutes that have no moral content --as such, they are inviolable regardless of efficiency ---therefore, the criteria for bestowing and protecting rights should be justice not the economic model of efficiency -also, because the criterion of bestowing rights and protecting them is efficiency (the guiding principle is that rights should be vested in whoever is likely to value them the most) then those informed voters should be robbed of their right to vote BUT that would be an undemocratic and unjust thing to do Lec 10 Law and Economics (Dimock Continued) -law and economics is a hard core capitalist approach in legal philosophy -the main proponent of the view= Posner (a right-wing conservative judge) -the basic claim seems straight forward: law serves the goal of economic efficiency and is a tool for wealth-maximization -given its aim, law and economics is a teleological theory (ie. Serves the particular end; wealth- maximization) Advocates of law and economics make 3 basic claims: 1. Descriptive claim: some laws are efficient 2. Explanatory claim: efficiency explains the rules we have 3. Normative claim: we ought to have efficient laws -ought to means that it is the supreme value -in economics the term efficiency is understood in a number of ways: 1. efficiency is understood in terms of what produces Pareto-superiority, which compares different situations to see which one makes people better off -situation A is superior to B and if and only if at least 1 person is better off in A than B and no one is worse off in A than B -when a state can`t be improved upon, we say that is it Pareto-optimal, meaning that there can`t be any state Pareto-superior to it -a Pareto-optimal state is maximally efficient 2. to overcome the problem with the Pareto-superiority scheme, some economics developed an alternative test of efficiency; the Kaldor-Hicks test. -here, it is said that situation A is Kaldor-Hicks efficient to situation B if and only if the exchange between the 2 winners could compensate the losers so that no one is worse off than they were in B and at least one person is better off in A 3. when there are market failures because of transaction costs, economists offer Coase Theorem, which states that when transaction are costless and individuals act cooperatively, any initial assignment of rights would be efficient (Pareto-effiecent) -the implication of this theorem for the law is that under the theorem`s conditions, the law need not assign property rights in any particular way, but when the conditions are not met, the law has to play a market-like role to achieve efficiency 4. at the core of economic thinking about human actions and interaction is the assumption that humans are rational beings and their rationality is instrumental in terms of adopting efficient means to achieve a specific end -because of this characteristic, people respond to incentive and that is what law can exploit -the advocates of law and economics want to model law after market and economy --they argue that market transactions are Pareto-superior, which is an improvement ---now, to maximize wealth, law needs to protect and facilitate market transactions -they argue that where there are market failures, we switch from the Pareto-superiority model to the Kaldor-Hicks model that allows interactions only in so far as the benefit to the better off is great enough to compensate for the loss of the worse off -furthermore, given people`s instrumental rationality, laws can guide their behaviour -legislators cannot and do not pursue the standard of efficiency in their role as law-makers but are driven by self-i
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