Thursday, August 29, 2013

Judicial Decisions Are Based on the Rule of Law. Right?

In the video below, Federal Appeals Court Judge Richard Posner talks about judicial decision-making. Students might be surprised to hear that judges often decide cases based on their feelings; political feelings, moral feelings or emotional feelings. A judge may be more inclined to decide a case based on the social outcomes of the decision rather than "fancy theories about the Constitution."

Is this the way our BLAW texts describe judicial decision-making?  If not, why not? This isn't really controversial thinking among those who study and write about the topic. Do we continuing to perpetuate myths about the law in order to preserve its legitimacy?

To be educated people, our students need to to be exposed to the nuance of judicial decision-making. The Legal Environment class that we teach them is likely the only law class that they will ever take. These issues must be raised.

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