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Decisions, decisions: competing theories on why judges act the way they do - sample legal theory essay

How do judges make their decisions? This sample legal theory paper looks at two prevailing theories: the legislative model and the principle model. This example social science paper suggests that judges do not have free reign to invent laws of their own but are constrained by overriding legal principles. It would be a good reference for a student who wants to organize the paper around legal or political per theories.

When the Rules Run Out - Judicial Decision Making

This paper will evaluate whether Hart's legislative model or Dworkin's principle model is a better explanation of how judges decide difficult cases? This question is important because both the role and function of the litigant and judge changes drastically with each model. Depending upon which model is followed, the request the litigant is making of the court in a hard case will alter significantly. Furthermore, it is important because each model gives a judge different strengths of discretion in a case without a clear legal solution. I believe Dworkin's principle model is a better explanation of how judges decide difficult cases because when clear legal rules run out, judges are constrained by overriding principles and are therefore not free to legislate their own law as Hart argues.

According to Hart, when the rules run out, there is no more law and judges have to legislate new law in order to decide a hard case. Therefore, the legislative model claims that rules can run out, and when they do, it is up to the judge's personal discretion to determine what law should be made to supplement the rule. Hart also states that rules aren't always clear. An example would be the rule, "No vehicles allowed on campus." Although cars, buses, and trucks are clearly vehicles, it is much less clear whether bikes, mopeds, roller skates, or scooters constitute a "vehicle" and would therefore be banned from campus. When interpreting an unclear rule, Hart says judges are in the "penumbra of uncertainty" and thus, must legislate new law to supplement the unclear rule. Moreover, under Hart's legislative model, judges have strong discretion in deciding hard cases because they legislate new law however they see fit. Hart claims that the law can run out and judges must legislate to fill in the gap.

In addition, the legislative model holds that a litigant is asking only that the court base its decision on what would be best for society as a whole. Since the rules are too unclear to give the litigant any rights, the litigant is simply showing the court the need for judicial legislation on the issue (Murphy and Coleman, 45). Therefore, the litigant can only hope the new legislation will benefit them. Because the legislative model claims that in a hard case the rules have often run out, a litigant cannot say "I had a right to win" since no law exists to give the litigant any real rights in the case. This character of the legislative model further increases the judge's strength of discretion in hard cases since the litigant cannot produce a legal argument advocating a specific decision.

Now that we have discussed the characteristics of Hart's legislative model, I want to examine Dworkin's principle model, which I believe is a much better explanation of judicial decision making. In my opinion, the legislative model's view that in the absence of rules there is no law is wholly incorrect. It seems, the legislative model doesn't adequately explain how judges make decisions in tough cases. All we are told is that they legislate new law. However, Hart doesn't give any specific guidelines or methods as to how this legislating takes place. In contrast, Dworkin claims that morality in the form of principles comes into play in judicial decisions when there are gaps in the rules. Under the principle model, judges appeal to pre-existing legal principles when deciding a hard case. An example of principles' use in a hard case is Riggs v. Palmer, where the court had to decide whether an heir could inherit the contents assigned to him in his grandfathers will even though the heir had murdered the grandfather. Although the will had been legally made and the rules as stated gave the inheritance to the murderer, the court did not award the inheritance to the murderer. They stated that under common law, no one should get to profit from their own fraud (Murphy and Coleman, 42). The courts discussion over whether to follow the rule demonstrates a discussion of principles and morals and illustrates how the principle model is used in hard cases.

Another reason I favor the principle model as a method for judicial decision making is that it only gives judges weak discretion. Principles provide a check on judges by giving them law to work with in hard cases where clear rules are absent. Through this weaker discretion, we can be assured that judges aren't free to decide cases however they like. Dworkin explains that judges are bound to the relevant principles when ruling in a hard case. He compares this to a person adding a chapter in a chain novel. As an author writing the next chapter, you are constrained by what happened before in the previous chapter. Likewise, a judge can't simply base their decision on whatever they please because they have to act in good faith to the relevant principles. Thus, the principle model gives the judge much weaker discretion than the legislative model.

In addition to judicial discretion, the litigant's role within the principle model is another reason I think it is superior to the legislative model. It seems inherent to me that a litigant should have the ability to claim that hey have a right to win their case, even in hard cases. Unlike the legislative model, which holds a litigant doesn't have any rights in hard cases because the law runs out, the principle model establishes that principles can apply when rules run out and thus enables a litigant to claim they have a right to win. Furthermore even after losing a case, claiming that you had a right to win makes sense and can only make sense in the principle model. Dworkin points out that one can argue to have weighed the relevant principles in a more persuasive way than the court. Appeals lawyers, dissenting judges, and appeals judges who overrule lower courts make these cases all the time (Murphy and Coleman, 45-46). These persons are appealing and dissenting on the law. Consequently, even in hard cases, there is still law in the form of principles.

Proponents of Hart's legislative model would probably respond to my view that Riggs v. Palmer was decided using principles, by claiming the judges decided to legislate new law, not appeal to principles. Hart's followers would argue there weren't rules applicable to the case, so the judges legislated a new rule that you can't benefit from your own fraud. They would reject the notion that the judges used moral principles to decide the case. Another counter argument to my claims would be if judges really do have strong discretion under the principle model. Opponents could argue that there are probably many different relevant principles a judge could apply to a hard case which allows the judge considerable room to choose whatever principle suits their personal views best. They could also claim the "chain novel" example meant to illustrate the constraints on judge's discretion fails to do so. Arguing that in the example there are still many different outcomes that would fit the previous chapters. They could reference "you choose" novels where the reader can pick which path they follow in the story from a variety of options. This would seem to contradict the idea that applying principles prevents judges from simply basing decisions on their own views. Lastly, my opponents would argue against my belief that a litigant can plausibly claim to have had a right to win a case in which they lost. They would argue that rights, according to Hart, are aspects of legal rules and in hard cases there are no clear rules. Thus, in a hard case a litigant cannot have a "right" to win since their aren't legal rules to establish a right.

In response to my opponent's claims that Riggs v. Palmer is simply and example of judicial legislation, I would argue that since there was a clear rule that existed in this case, there would have been no need to legislate. Only appealing to an overriding principle could have created the decision to refuse giving the inheritance to the murderer. This case plainly shows that judges appeal to moral principles in hard cases. Secondly, the view that judges have strong discretion in the principle model is false. Although judges do have room when deciding what principles are relevant, they are still bound to pre-existing law. Furthermore, the chain novel example holds firm, because while a judge may have many different principles they can apply to a case, only one or two will be a great fit. Ultimately, in the legislative model, judges are constructing new law, which is clearly stronger form of discretion than under the principle model where judges merely apply existing law. Finally, dissenting opinions in the U.S. Supreme Court and appeals judges overruling lower courts decisions enforces my belief that even in hard cases, litigants have claim to a right. Principles provide the basis for litigant's to claim a right to win by filling the legal gap when rules run out.

Overall, I believe it is clear that Dworkin's principle model provides the best insight into how judges decide hard cases. The litigant's role and the strength of discretion given to judges under the principle model are more accurate and effective. The notion within the principle model that when the rules run out, principles fill the gap is demonstrated quite clearly in hard cases' decisions. To make judges legislators, as Hart does, simply gives them too much power and discretion. Finally, it is only through the lens of the principle model that judicial decision making is accurately explained.
 

Works Cited

 
Choper, Jesse, Richard Fallon, Yale Kamisar, and Steven Shiffrin. Constitutional Law. Tenth edition. St. Paul, MN: Thomson/West, 2006. Print. 1,604 / 6 pages
 

 
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