... I must say, it is rather pleasing to see how political scientists are discussing "law" in this thread. About 5 years ago, one could easily imagine such a discussion being theory-poor. There's a Dworkinian influence in a substantial number of the contributions. I'm currently working on a law and language book project, and I want to offer what I think is a bit of a different take (slightly). I want to suggest that whether law is followed is always, by necessity, a philosophic question. You answer it only with an allegiance of some sort. Therefore, at issue is never WHETHER it is followed, but rather what TYPE of following it is. I would seriously challenge any member of this list to construct a set of reasons that justify his or her decision in a case, and NOT have it be obedient to some theory about how law works. If we understand this, we understand that there are law-following STYLES. And that being "correct" in law therefore involves our picking and defending which style is better than another. This is, as I have argued in one of my conference papers, a type of connoisseur judgment. (See Wittgenstein on aesthetics). We say, e.g., that modality X (say, orignialism) is a poor form of the craft, much the way we say that we might say that specimen X is a poor form of a particular kind of dance. Or that the tailor has made a poor cut of the suit. And the ones who most knowingly say this are the ones who participate most closely in the cultural behavior in question (dance, cutting suits, etc.) -- i.e., the people who teach and do the behavior. The people who make the behavior into its own culture. Therefore, if you have an average judge who makes average rulings that consistently favor conservative interests on the bench, he or she is better thought of as one might a hair dresser who is poor or average at his or her job. In neither case does the person fail to follow their craft (law, hair dressing); they are just a below-average specimen of it. We need to purge ourselves altogether of the false idea of whether "law" is followed. We need, instead, to ask ourselves which of the law-following behaviors and styles that come from this organized craft are the better specimens, and why. No academic can enter this particular question without first being a good student of philosophy. (P.S. Sent to Meta-Law and to Wittrs) Regards and thanks. Dr. Sean Wilson, Esq. Assistant Professor Wright State University Personal Website: http://seanwilson.org (Subscribe: http://ludwig.squarespace.com/sworg-subscribe/ ) SSRN papers: http://ssrn.com/author=596860 New Discussion Groups! http://ludwig.squarespace.com/discussionfora/ ________________________________ From: "Graber, Mark" <MGraber@xxxxxxxxxxxxxxxxx> To: LAWCOURT-L@xxxxxxxxxx Sent: Mon, September 27, 2010 11:59:59 AM Subject: Re: State Elections and the Rule of Law I think I disagree somewhat with this. There is a difference between declaring “the rule of law does not provide a determinate answer to a question” and “the rule of law has no bearing on a problem.” Consider an issue from a world in which I actually have some expertise, bridge bidding. Bridge experts debate whether you should open “one no trump” on an otherwise suitable hand if six of your thirteen cards in either in the club suit or diamond suit. But everyone agrees that with a five card club or diamond suit and an otherwise suitable hand, you open one no trump, but do not open up “one no trump” with a seven card club or diamond suit. In short, the rules of bridge have structure the range of legitimate disagreement. Rule of law may have a similar function. MAG From:Law courts [mailto:LAWCOURT-L@xxxxxxxxxx] On Behalf Of Frank Cross Sent: Monday, September 27, 2010 11:54 AM To: LAWCOURT-L@xxxxxxxxxx Subject: Re: State Elections and the Rule of Law I think the debate is a little too simple. Judges have objective standards that govern many cases clearly, the rule of law. For cases on the indeterminate margin of the law, though, judges always reach the same conclusion they would reach if the legal text just said “do whatever you think is right.” I think this is a good system. There really is no rule of law on the latter questions. The issue is when judges miss on clear legal cases. I don't think that happens a great deal, but it happens some and may be due to electoral concerns. OTOH, electoral concerns seem quite defensible on the marginal indeterminate cases. At 10:28 AM 9/27/2010, Clayton, Cornell William wrote: I suspect that Mark and I most agree. The work that demonstrates judges, in fact, behave differently from other political actors, demonstrates the difference by showing how judges believe they should make decisions on the basis of an evolving set of professional norms, NOT that they reach objectively correct decisions in close cases. The “objective” component in judging is thus the degree to which there exists a professional consensus about those norms and commitments. CWC From: Law courts [mailto:LAWCOURT-L@xxxxxxxxxx] On Behalf Of Graber, Mark Sent: Monday, September 27, 2010 8:18 AM To: LAWCOURT-L@xxxxxxxxxx Subject: Re: State Elections and the Rule of Law I think I would push this a little bit. Imagine a world in which persons sincerely believe they are acting on the basis of law, but always reach the same conclusion they would reach if the legal text just said “do whatever you think is right.” I think there is some very good work that demonstrates that judges, in fact, behave differently than other political actors, in part because they are committed to law (think of Gillman’s The constitution Besieged, which documents how justices thought differently about economic rights and reached different conclusions on economic rights than other political actors). In short, rule of law needs some objective component. MAG From: Clayton, Cornell William [mailto:cwclayton@xxxxxxx] Sent: Monday, September 27, 2010 11:09 AM To: Graber, Mark; LAWCOURT-L@xxxxxxxxxx Subject: RE: State Elections and the Rule of Law Jim is right that in the post-Realist world the "rule of law" cannot be defined simply in terms of correct outcomes in cases. Mark is also right that "democratic accountability" cannot be defined simply in terms of majoritarian electoral outcomes. I would argue that for the "rule of law" to have any meaning it must be tied to an understanding of what judges think they are doing rather than what they actually do or decide. Thus, a judge adheres to the rule of law when they act in accord with what they believe to be the best understanding of the law as defined by relevant (but evolving) legal and professional norms. Different judges may have different understandings about what those norms require in any particular case – Scalia and Breyer will disagree about what the Equal Protection Clause requires in a case involving gay marriage say, but both will agree that the law does not leave them unconstrained to simply impose their personal policy preferences. In other words, the rule of law is a state of mind in which judges and other political actors feel themselves constrained by legal norms, not a state in which only one set of case outcomes is possible. The question of which selection process is most desirable therefor may be less about judicial qualifications, and more about how different selection processes influence judicial self-perceptions and senses of normative obligation. A judge who is selected by simply majoritarian elections may begin to believe that their proper role is to simply to adhere to majoritarian preferences. What would be interesting is to see more empirical work done on how elections impact judicial self-perceptions. CWC Frank B. Cross Herbert D. Kelleher Centennial Professor of Business Law McCombs School of Business University of Texas CBA 5.202 (B6500) Austin, TX 78712-0212 512.471.5250