Legal Theories of Holmes and Frank

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Questions and Answers

According to the content, how do judges typically make decisions using sources of law?

They exclusively rely on past rulings without any interpretation.

They manipulate language to fit their desired outcomes. (correct)

They strictly adhere to the rules without exceptions.

They prioritize public opinion over legal sources.

What does Frank argue about the nature of judges in the legal system?

Judges are strictly impartial entities.

Judges function as automated decision-makers.

Judges operate only based on established precedents.

Judges are influenced by human traits and biases. (correct)

In the context of law and economics, what is wealth defined as?

A mixture of personal connections and monetary resources.

The total value of the economy within a country.

All physical assets owned by an individual.

Satisfactions that can be measured in monetary terms. (correct)

What is the perspective of Hart regarding judicial decision-making?

Law should only be viewed as a set of rules. Signup and view all the answers

What might be a potential benefit of recognizing judicial discretion according to Frank?

The process of judicial decision making will appear more honest. Signup and view all the answers

How do social science studies suggest judges' decisions can be influenced?

By the time of day when they make decisions. Signup and view all the answers

What does Holmes imply about the perception of taxes and fines from the perspective of the bad man?

They view both as penalties for bad behavior. Signup and view all the answers

What is one of the two pitfalls mentioned in relation to Holmes’ predictive theory of law?

The assumption that judges can act free from biases. Signup and view all the answers

Which of the following accurately depicts the role of precedent as discussed?

Precedents can be selectively interpreted to fit judges' conclusions. Signup and view all the answers

What does Frank suggest about how judges make decisions?

Judges make decisions based on their hunches and biases. Signup and view all the answers

How does Jerome Frank view judicial discretion?

As a myth that misrepresents how judges actually operate. Signup and view all the answers

What distinction does Frank make regarding 'actual law' and 'probable law'?

Actual law involves specific rulings, whereas probable law includes predicted outcomes. Signup and view all the answers

What does Holmes argue about the role of public opinion in judicial decisions?

Judges are significantly influenced by public opinion despite claims to the contrary. Signup and view all the answers

Which philosophical perspective does Frank align with in his legal realism?

Psychological aspects of decision-making. Signup and view all the answers

What kind of changes to legal education does Holmes suggest?

Incorporation of social advantage perspectives. Signup and view all the answers

What does Frank criticize about the 'conventional view' of law?

The assumption that judges do not change the law. Signup and view all the answers

What major influence does Frank draw upon to express his concerns regarding judicial discretion?

Freudian concepts about childhood and authority. Signup and view all the answers

Study Notes

Holmes' View of Law

Holmes believed in the "predictive theory of law," suggesting that law should be viewed from the perspective of a "bad man" who only cares about the consequences of breaking it.
Holmes argued that there’s no substantial difference between taxes and fines for a "bad man."
He stressed that law involves more than just logic and that judges' decisions are often influenced by public opinion.
He advocated for legal education to emphasize the importance of considering social advantage in interpreting laws.

Jerome Frank's Legal Realism

Frank, a legal realist, agreed with Holmes' views. He believed that “conventional view” of law, which emphasizes the application of logic and reason, is unrealistic.
Frank argued that the desire for absolute certainty in law is a “childish” desire for a “fixed father controlled universe.”
He believed that judges are more influenced by their “hunches” than any established legal principle.
He challenged the notion that judges never change existing law or make new law.
Frank believed that judges are like witnesses in trials, influenced by their biases, prejudices, and even inadmissible evidence.

Law and Economics

Economics analyzes exchanges people are willing to make and what they're willing to give up.
Wealth is defined in economic terms as “all satisfactions that can be measured” or “preferences backed by willingness to pay.”
Economists believe in maximizing wealth through free market exchanges, as people are assumed to act rationally and try to obtain things they desire most.
The free market is seen as a mechanism for distributing goods and services to maximize wealth.

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Description

Explore the contrasting views of law by Oliver Wendell Holmes and Jerome Frank in this quiz. Understand Holmes' predictive theory of law and Frank's legal realism, both emphasizing the subjective nature of legal interpretation. Assess how judges' decisions and societal influences impact legal outcomes.