PHIL 312 Past Paper PDF

PHIL 312 MWF 1-1:50pm Walnut 118 L. Burris Announcements: N/A __________________________________________________________________________________________ Holmes (review from last class) Predictive theory of law Perspective of bad man 2 pitfalls Implications of Holmes’ view...

PHIL 312 MWF 1-1:50pm Walnut 118 L. Burris Announcements: N/A __________________________________________________________________________________________ Holmes (review from last class) Predictive theory of law Perspective of bad man 2 pitfalls Implications of Holmes’ view 1) In perspective of the bad man, there’s no difference between taxes and fines o Sometimes in law we punish people with financial penalties ▪ I.e., mining company dumping into a river gets a big fine as a penalty & we also have things like income tax where we are paying money even though we’re not doing anything wrong per say ▪ Bad man thinks we shouldn’t fuss about the difference between these i.e., a big polluting company would just treat penalty as a fine 2) Law isn’t just about logic o Opposed to legal formalism o Judges act as though logic is what they’re relying on in rendering their decisions, but Holmes argues that judges are very influenced by public opinion & just because they say that they’re only using logic doesn’t mean that’s what is really happening o Holmes thinks seeing this fact frees judges up to make better decisions ▪ One judges realize their decisions aren’t just about logic, they can start to make decisions based on social advantage (what’s good for society) ▪ Holmes thinks this already explains why law is the way it is 3) Suggests changes to education o Argues lawyers should be trained to think about social advantage in interpreting a law so people would be honest and open about how they’re deciding things Jerome Frank (1889-1957) Legal realist who agrees with Holmes about a lot of things but wants to add some of his own theorizing Criticizes “conventional view” – paragraphs 3-5 in the reading is Frank describing a view he will disagree with ultimately o “Contrary minority view” – this is Frank’s view Frank is thinking a lot about psychology during the time he lived Worrying about judicial discretion o Concerns about judge made law comes from unrealistic and childish desire for “absolute certainty and predictability in the world” and have a “fixed father controlled universe” (Freudian influence)  o He argues this has lead to a myth that judges never change existing law or make new law (really disagreeing with Dworkin here) Predictive theory of law o Statues & case law function merely as imperfect predictions of what a judge will decide in your case o The law is unsettled – there is not fact of the matter until judges issue particular ruling in a case o Distinguishes between actual law and probable law: ▪ Actual law: specific decision about a previous case, how judges decided particular case ▪ Probable law: guesses or speculations about how judges will rule in the future People who consult lawyers are interested in lawyers helping them make an educated guess (totally agreeing with Holmes here) Psychology of judicial decision-making o Argues judges make decisions in cases the same way the rest of us make decisions, based on hunches o Says judges are almost always rationalizing o Example: drunk driving cases prosecuted differently in different states but what is consistent is the punishment o Hunches can come from theory of law, but also can come from principles of law but also from “political, economic and moral prejudices of the judge and also sometimes from judges personal idiosyncratic biases” ▪ Frank thinks these political, economic, and moral prejudices are root of all other prejudices ▪ It’s well known in the law that witnesses have biases that lead them to misrepresent objective facts - what would lead us to think judges would never do this? ▪ Thinks the judge is essentially a witness to the trial ▪ Social science studies in law have found that judges are more likely to grant parole right after breakfast and lunch ▪ Judges are influenced by inadmissible evidence ▪ Biases based on race and gender ▪ Political differences in who gets granted standing o Frank argues this shouldn’t surprise us because judges are human beings Law vs. sources of law o Law – judicial decision in a particular case o Sources of law – one of the things judges use to decide particular case Role of precedent o Arguing against how people ordinarily think of precedent o Precedent cases don’t function the way judges say they do – judges manipulate language of former decisions to serve their purposes o Hart thinks in certain kinds of cases judges make their own decisions about what the law should say, Frank is saying this happens in every case – all strong discretion (Dworkin thinks it’s never strong discretion, Hart says it is in penumbral cases) For Hart, law is rules, for Holmes/Frank rules are not law but sources of law and help judges decide how to rule Like Holmes, Frank says this will be liberating for judges o Judges will be free to admit how they decide cases & will make the process of judicial decision making more honest ______________________________________________________________________________________________ Law & Economics If you haven’t taken an econ class, a lot of this language is going to be weird & a little difficult to understand People in economics look at what exchanges people are willing to make/what we are willing to give up o Money is the easy obvious answer to compare strength of our preferences – money is the common unit to make comparisons Wealth: o “All satisfactions that can be measured “ o “Preferences backed by willingness to pay” o Measure of getting things you want qualified by how much you wanted it o Example: ▪ I want oranges —I would pay $5 for orange & 3 cents/lb for spaghetti ▪ You want spaghetti — You would pay 3 cents for an orange & $5 for lb of spaghetti ▪ Let’s say I get spaghetti and you get an orange – I get a good that’s worth three cents to me, you get a good worth 3 cents to you. An economist would look at this and say our total wealth is 6 cents. ▪ BUT what if I get the orange and you get the spaghetti – I get a good that’s worth 5 dollars to me, you get a good worth 5 dollars to you. Total wealth would equal 10 dollars. o Basic idea – people want things to different degrees o We maximize wealth by each getting the thing we want more o Wealth maximization is a legitimate aim of the law Exchange: o Psychological assumption that people are rational (try to maximize their own wealth – which is to say they try to get what they want most) Start: each has 1 orange and 1lb of spaghetti o I have goods worth $5.03 o You have goods work $5.03 o Total wealth = $10.06 After exchange: I have 2 oranges, you have 2 lbs of spaghetti o I have goods worth $10 o You have goods worth $10 o Total wealth = $20 o In our exchange we increased wealth The idea in economics is when actors are rational and free to exchange, they will exchange in such a way as to maximize wealth This is the foundation for assumption that markets are distributive mechanisms that function to maximize wealth If looking for a distributive mechanism that is going to get people the most of what they want the most it’s free market exchange