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American Realism - Coggle Diagram

- - - - Can we predict what decision will be made?
        
        The first group includes theorists like Frank, who argue that idiosyncratic factors related to the psychology and personality of individual judges determine case outcomes, representing the ‘idiosyncrasy’ wing of legal realism. ( Lieter)
        
        Frank acknowledged that predicting specific decisions was "impossible," at least at the time, due to the difficulty of knowing a judge's inner workings. This did not mean decisions were random, but rather that the determining factors were obscured by the complexity of individual personalities
        
        t, “The truth is that prediction of most specific decisions ... is, today at any rate, impossible” (1931, p. 246; cf. 1930, passim). The qualification (“today at any rate”) is important: for the problem is not that there are no determinants of decision (Frank does accept a type of Freudian psychic determinism) but rather that such determinants are epistemologically opaque: we have no reliable way of knowing what they are. But even Frank allowed that if judges became suitably self-aware – undergoing, say, psychoanalysis – then they could provide us with the information about their personalities that would make prediction possible (1930, p. 163).
        
        Not impossible to attain a degree of predictability but , practically difficult to attain given that each judge would have to undergo psycho analysis
        
        (Lieter rethinking)In its extreme, Frankified form, the theses of Judicial Volition and Judicial Idiosyncrasy lead to the conclusion that judicial decision is utterly unpredictable, as it is never possible to isolate the significant idiosyncratic facts about the individual judge that influence his essentially unconstrained choice of outcome.62
        
        But what "fetters" does the Frankified Received View offer? On the Received View, the foundation of judicial decision is the various idiosyncrasies of the individual judge, which not only govern his sense of justice on a given set of facts, but "the very processes by which he becomes convinced what those facts are. "65 Here, then, the problem is epistemological: There are indeed determinants of decision (as, of course, Frank's vulgar armchair Freudianism would imply), but they are inaccessible to the observer, the would-be predictor of judicial decision. No lawyer or scholar could possibly track all the peculiarities of life history and psychological coloring that go into the process of decision necessary to predict what judges do. When the "fetters" upon decision are idiosyncratic, the key to prediction will remain epistemologically opaque.66
        
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        The second group of realists argues that decision-making is shaped by social patterns and shared characteristics among judges, making the determinants of judicial outcomes more predictable. This perspective represents the ‘sociology wing’ of legal realism. ( Lieter)
        
        However, the sources also indicate that realists, particularly those in the "sociological wing," believe in predictable patterns in judicial behavior. They argue that factors like a judge's professional training and their shared understanding of societal norms and expectations create consistency in their responses to similar fact patterns. For example, judges often uphold the prevailing norms of commercial culture, applying legal rules in a way that aligns with accepted practices and promotes economic stability. This suggests that even with the acknowledgement of extra-legal influences, realists don't necessarily view decision making as completely haphazard.
        
        judges are the product of their time
      - What difference, if any, does it make whether legal decisions are causally determined by precedents and rules or by non-legal factors?
        
        Do Australian judges decide cases by following precedents and rules, or are the decisions at which they arrive determined by their personal idiosyncracies, including their psychological make-up, political views and conceptions of justice?
        
        Formalism vs realism
        
        What is formalism?
        
        Formalists believe judges begin with a rule or principle of law as their premise, apply this premise to the facts, and reach a decision through this deductive process.
        
        Formalism as an epithet has been widely applied. In a very strict sense, the formalist holds that decisions flow (or ought to flow) from certain axiomatic definitions. For example, in the notorious (formalistic) opinion in United States v. E. C. Knight Co. (156 U.S. 1, 1895), the U.S. Supreme Court held that regulating a sugar manufacturer—responsible for 90 percent of sugar production in the United States—was not within Congress’s power to regulate “interstate commerce.” This was because, by definition, interstate commerce did not include manufacturing, which occurs only within a state.
        
        Formalism may still be present and operating
        
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        In a looser sense, formalism refers to any view in which authoritative legal sources, along with the “methods” of legal reasoning, are sufficient to provide a watertight justification for a unique outcome to any dispute. The deductive model of decision-making described by Frank is the most familiar form of this approach.
        
        Same rule book different outcomes
        
        Judges decisions don't merely operate in vacuum, in the same way the way that arrive at a decision doesnt neccearliy mean that they a fee to choose the method of legal determination
        
        American realism will argue otherwise.
        
        is their evidence of this practice?
        
        Can such a position be viable
        
        to suggest that judges can attain absolute impartiality and dedication to the rules of precedent and legal factors is a mere pipe dream in the pursuit of something as objective as 'the correct approach to law'. However, simultanoeusly to say that legal factors play no role would also be a fallacious comment. Is this what American realism is actually arguing though. Are they saying that the presence of non legal factors do not exists and that they are merely superimposing.
        
        Is the question asking is it possible to exist in just one camp?
        
        Realists, particularly those in the "sociological wing," don't completely dismiss legal rules and reasons. They acknowledge that these are part of the "class of legal reasons" that influence judges. However, they argue that these factors alone are not determinative in how judges reach decisions.
        
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        Judges are not a blank slate
        
        Judges are subject to the same cognitive biases as everyone else. This includes things like confirmation bias (being more likely to accept information that confirms pre-existing beliefs), anchoring bias (relying too heavily on the first piece of information received), and the availability heuristic (judging the likelihood of something based on how easily examples come to mind)
        
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        Does this mean that the question is really concerned with the physiological wing as apposed to the sociological wing
        
        If so this wing as a lot more haphazard
        
        does it involve a balance
        
        ‘idiosyncrasy’ wing
        
        Judges primarily respond to the facts of a case, forming a "hunch" about what is right or fair. This intuition drives the decision-making process, with legal rules serving more as justifications after the fact. ( Leiter)
        
        Judge Hutcheson’s confession that he reached his decisions by getting a “hunch” about what would be right or fair on the facts of a given case (1929, p. 278) provided the foundation for the idiosyncrasy wing of realism.
        
        Frank specifically endorsed Hutcheson’s view and declared: “the way in which the judge gets his hunches is the key to the judicial process” (1930, p. 104). While conceding that “rules and principles are one class of ... stimuli” producing decisions, Frank claimed that it is “the judge’s innumerable unique traits, dispositions and habits” which are decisive, which “shap[e] his decisions not only in his determination of what he thinks fair or just with reference to a given set of facts, but in the very process by which he becomes convinced what those facts are”
        
        Evidence of the presence of the idiosyncrasy wing
        
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        use of ideology and cultural cognition
        
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        The Idiosyncrasy Wing argues that judges, like all humans, are influenced by a range of personal factors that shape their understanding of fairness and justice. [previous responses] These factors, including individual values, biases, and experiences, contribute to a judge's intuitive sense of what constitutes a just outcome in a particular case. This intuitive sense, referred to as a "hunch," often precedes the formal application of legal rules.
        Frank argues that judicial opinions, with their elaborate reasoning and citation of precedents, often mask the true process of judicial decision-making. Rather than reflecting the objective application of rules, these opinions serve as a means of rationalizing a decision that has already been reached based on the judge's hunch. This process of post-hoc justification allows judges to present their decisions as grounded in legal principles, even if those principles were not the primary drivers of the decision.
        
        Frank uses the analogy of a "Cadi" to illustrate this point. Cadis, traditional judges in some societies, were known for dispensing justice based on their personal wisdom and sense of fairness, often without reference to formal legal codes. Frank argues that modern judges, despite operating within a system of legal rules, often function similarly to Cadis, relying on their hunches to arrive at decisions.
        
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        What does it mean by precedent or rules on what basis :
        
        The sources explain that rules operate by selecting certain properties and suppressing others to create general statements applicable to multiple instances or situations. This process allows for the rule to cover a broader range of circumstances than specific, individualized commands. (Playing by the rules)
        
        Modification and exception
        
        Rules by their very nature or net set in stone. they are changing, malleable and subject to interpretation
        
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        if a legal decisions are solely determined by precedents and rules, as formalists believe, then the law is a relatively closed and self-contained system where outcomes can be determined through logical deduction. Judges, in this view, act as neutral arbiters, mechanically applying the law to the facts. However, if non-legal factors like social context, judicial personality, or economic considerations play a role, as legal realists argue, then the law becomes more open-ended and unpredictable. Judicial decisions become influenced by factors beyond the formal legal framework, potentially leading to different outcomes in similar cases.
        
        Legal judgements reflect the context of their day in some respects
        
        Rules are already indeterminate
      - This part of the question is calling for a comparison between the outcomes of MOD 5 (Following rules and precedents) AND American realism
        
        Rules and precedents create predictable outcomes because they operate as entrenched generalizations that guide decision-making. This means that instead of evaluating every situation on a case-by-case basis, decision-makers apply a pre-existing rule or precedent to the situation at hand, even if doing so might not produce the optimal outcome in that particular instance
        
        Just following the letter of the law makes the law predictable at what cost?
- - - - Jerome Frank and Karl Llewellyn
        
        According to Frank, judges do not begin with the law when deciding cases but with a pre-trial intuition about how a case should be resolved. They first determine what they believe to be the correct outcome and then search for legal rules and precedents to rationalize that outcome after the fact, suggesting that outcomes precede the law. Judges’ personal attributes, such as political preferences, psychological traits, and individual conceptions of justice and fairness, significantly shape their decisions. Similarly, Llewellyn concurred with Frank, arguing that legal materials have minimal causal influence on judicial outcomes.
        
        Presence of two hypotheses
        
        Judges start with their preferred outcome.
        
        Empirical investigations using sophisticated statistical tools reveal that judges’ ideology, rather than their personal characteristics, is the strongest predictor of case outcomes in the U.S. Supreme Court.
        
        ideosynacracies.
        
        Judges background could be as important as the law itself.
        
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        Materials are almost always available to justify outcomes
        
        At the appellate level, there will almost always be precedents and legal rules, such as legislation, available to justify decisions in favor of either party to a dispute.
        
        Legal doctrine is in place to support and vindicate a decision which is reached on a non-legal basis to make it looke like the law is the basis from which the decsion has been made.
        
        based upon this conception, rather then a judge adapting their position based upon legal factors, legal factors are adapted to a judges decision.
        
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        Context rather than psycology
        
        less on the indiviudal judge and more on shared norms
        
        judges are products of their time and place
        
        a judges idea of what is fair and just is coloured by the world around them
        
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    - - Leiter
        
        Leiter thinks that what distinguishes realism is its view that cases’
        facts causally determine decisions