Legal Realism and ‘Working’ Rules

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets e...

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Bibliographic Details
Published inThe Canadian journal of law and jurisprudence Vol. 35; no. 2; pp. 321 - 364
Main Author Frydrych, David
Format Journal Article
LanguageEnglish
Published New York, USA Cambridge University Press 01.08.2022
Subjects
Analysis
Commercial law
Common law
Court decisions
Decision making
Hypotheses
Judicial power
Jurisprudence
Legal realism
Legal studies
Realism
UNITED STATES
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Summary:The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.
Bibliography:CANADIAN JOURNAL OF LAW AND JURISPRUDENCE, Vol. 35, No. 2, Jun 2022, 321-364
Informit, Melbourne (Vic)
ISSN:0841-8209
2056-4260
DOI:10.1017/cjlj.2022.14