Questions and Answers
What did Laswell and McDougal propose teaching law students in the 1940s?
How to make and implement policy decisions.
What did Hart and Sacks' legal process materials offer a vision of?
American society with shared values in institutional competencies.
According to modern case law, how are boundaries portrayed?
As fluid or blurred
What did Benjamin Cardozo's opinion in McPherson v. Buick Motors Company modify?
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What did Bickel create as a new category?
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What does the Sales Article of the Uniform Commercial Code seek to replace?
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What does the breakdown of boundaries in modern American legal thought lead to?
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Study Notes
- In the 1940s, Laswell and McDougal proposed teaching law students how to make and implement policy decisions.
- Post-realist reconstructors of American legal thought incorporated realist insights into the legal system.
- Hart and Sacks' legal process materials offered a vision of American society with shared values in institutional competencies.
- Judges had the competence to settle questions that could be settled by reference to general, articulated standards.
- Modern case law accepts the absence of clear boundaries between categories, with boundaries portrayed as fluid or blurred.
- The blurring of boundaries cuts across all doctrinal lines, including contract and tort distinctions.
- In constitutional law, the line between public and private can only be located by applying a puzzling array of increasingly refined and contextual "tests."
- The breakdown of boundaries and uniform, generally applicable categories has led to the breakdown of the deep sense of analogy and uniformity that once characterized classical thought.
- Modern American legal thought continues to be premised on the distinction between private law and public law.
- Private law is still assumed to be separate from public law.
- Private actors have private rights and make private choices.
- Judges refer to public policy when justifying private law decision making.
- Postrealist reconstructors of private law theory acknowledge the role of policy choice in legal decision making.
- Judges acquire a "craft-consciousness" and respond to new situations through a "reworking of the heritage" rather than unguided impulse.
- Benjamin Cardozo's opinion in McPherson v. Buick Motors Company modified the classical privit of contract rule to hold Buick liable for a "foreseeable" injury to a party not in privity.
- Cardozo used the tort doctrine of foreseeability to mediate the extremes of freedom and security.
- Modern private law thinking has both conceded and evaded the inevitability of value choice in legal decision making.
- The Sales Article of the Uniform Commercial Code seeks to replace a formalistic application of rules with standards of good faith and reasonableness.
- The legal process school came up with two major responses to realism: the strategy of deference and the strategy of craft.
- The search for a coherent foundation for rights analysis, particularly for judicial review, has been the preoccupation of modern constitutional law theorists.
- The New Deal led to the Supreme Court abandoning economic regulation subject to invalidation under property and free contract.
- Deference in that area left other supposed constitutional rights unresolved.
- Bickel created a new category called prudence, which was a preferred model for all cases.
- A prudent Supreme Court would avoid judicial review by using procedural grounds to justify a refusal to reach the merits.
- Bickel's approach represented a retreat from the juristic model of rights and sovereignty.
- The Bickel approach of deference to the legislative process evades questions about the nature of representation.
- The American legislative model is not more unquestionably democratic or legitimate than judicial review.
- Both are part of a total constitutional structure, as interpreted by past legal decision making.
- An attack on any single part of that structure calls into question the legitimacy of the whole structure.
- The Court cannot escape responsibility for the social decisions made by suddenly avoiding judicial review.
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