Chapter 2 second book

Chapter 2 second book - Thursday, May 08, 2008...

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Thursday, May 08, 2008 Introduction: The relationship between judicial activity and law making is a crucial question for any social science of courts because law making, or the ongoing adaptation of rules, is the most salient acitivity of all organs of government. In Western legal systems, it ican hardly be denied that courts make rules all of the time, since these activities are minutely recorded in case law, and thus is it impossible to deny that judges are political actors. Toward a theory of stare decisis: Even in the most conventional view, the Anglo American common law is case law not statutory law, that is, the Anglo American common law is case not statutory law, that is, law made by judges not legislators. One of the most noble accomplishments of legal doublethink is its ability to refer to common law as judge- made law while at the same time asserting as a general and universal proposition that judges apply rather than make law, and thereby are to be distinguished from politicians. Common law judges follow a special set of rules of decision, called stare decisis, which puts them outside of politics and prevents them from making personal policy choices. Stare decisis treats, in any given area of law, each judicial decision as a potential precedent for the next round of litigation or, rather, treats the body of rules and reasoning announced in previous cases as binding upon the judge deciding the current case. Legal reasoning- that is, reason by analogy. The law changes. The law is judge made. Stare decisis, however, magically separates the judges from the politics of policy choice that characterizes other law makers. Shapiro’s Incrementalism: 1. Multiple, changing, acceptable-level goals. The criterion of choice is that the alternative selected meet all of the demands-goals- of the coalition. 2. An approximate sequential consideration of alternatives. The first satisfactory alternative evoked is accepted. Where an existing policy satisfies the goals, there is little search for alternatives. When failure occurs, search is intensified. 3. The organization seeks to avoid uncertainty by following regular procedures and a policy of reacting to feedback rather than forecasting the environment.
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4. The organization uses standard operating procedures and rules of thumb to make and implement choices. In the short run these procedures dominate the decisions made. Instrumentalism is a process of decision making in which all information about the facts bearing on the matter has been gathered, all values or preferences of the decision-maker have been gathered, all values or preferences of the decision- maker have been identified and prioritized, all policy alternatives that might achive those values under thos factual conditions have been considered and the single best policy is finally chosen. Incrementalism is claimed to be a more rational strategy than synopticism for a number of reasons. The task was to show that the rules or practices of stare decisis were simply those of Incrementalism
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This note was uploaded on 05/29/2008 for the course LEGALST 179 taught by Professor Shapiro during the Spring '08 term at Berkeley.

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Chapter 2 second book - Thursday, May 08, 2008...

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