Legal Realism and the Lefty Blogosphere

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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5 Responses

  1. Max says:

    The problem is more that the people masquerading as anti-legal realists are utterly insane. Supreme Court Justices have nothing to guide them except precedent by which they aren’t actually bound. What possible theory of “law” could argue that to ask a judge’s beliefs about the law is inappropriate?

    Frankly, any individual who has not considered whether Griswold was rightly decided, and whether Roe and Casey are proper applications of it, should be automatically rejected from the Court for being grossly unqualified. The first time you think about the Constitution should not be your first day on the Supreme Court.

  2. SCOTUSblog says:

    Blog Round-Up – Saturday, November 26th

    The upcoming issue of Lews & Clark Law Review will focus on federalism after Gonzales v. Raich. It features a forward by Randy Barnett and articles by Ann Althouse, Thomas Merrill and others. On Concurring Opinions Dave Hoffman has this…

  3. John Jenkins says:

    Supreme Court Justices have nothing to guide them except precedent by which they aren’t actually bound. What possible theory of “law” could argue that to ask a judge’s beliefs about the law is inappropriate?

    What about the Constitution as a guide? How about a theory that assumes judicial humility and formalism (i.e. being bound by the text of statutes and the Constitution)?

    If your assumption is that the Supreme Court should make it up as they go along, then you’re right. Not everyone believes that, however, and your potshot reveals your lack of having considered the alternatives; beams and motes and all that.

  4. Max says:

    By “guide” I mean, “guide to the Constitution.”

    For example, what does “due process” mean?

    Maybe to you “due process” means what it meant at the time of the adoption of the 5th Amendment. That’s your belief; it’s not a matter of black letter law. Even if it was, what then do we do with the 14th Amendment’s application of rights protections to States? Do we use “due process” from 1789 or 1865?

    Maybe that’s what it means to Alito — and that’s why it’s essential he be asked it and that the Senate demand an answer. The same should be true of any nominee, whether they appear to be liberal or conservative.

    The fact that someone has served years on a Federal Court and shown themselves highly capable of judging reasonably is relevant to their “qualification” to the Supreme Court, but it is by no means dispositive. There is simply no way around asking a nominee for their beliefs about the Constitution. Frankly, I don’t see why anyone would want their potential justices to talk around the Constitution. Are conservatives pleased with Souter? He never once lied about his beliefs; maybe if someone had asked him, they would have known and could have made a more informed decision.

  5. John Jenkins says:

    You’re conflating two issues. It’s a fundamentally different question to ask “by what rules ought interpretation be done” than “what does this mean to you?”

    If you’re committed to the strongest form of the realist hypothesis (judges enact their preferences, period), then the first question is irrelevant and the second is, in fact, dispositive.

    If you’re not so committed (i.e. you believe that those whose interpretations are different than yours honestly interpreted the text and arrived at a different conclusion) then the second is almost meaningless, because you will believe that the person is constrained by the text being interpreted.

    You are asking what “Due Process” means, but the realist DOESN’T CARE what it means. The realist will use it as a vehicle to enact his policy preferences (see e.g. Miranda v. Arizona). For the realist, judicial decisionmaking is merely a question of what the best OUTCOME is, as opposed to the best interpretive method. The committed realist just doesn’t care.