Structures of Judicial Decision Making from Legal Formalism to Critical Theory

by Brooks, Roy L.

• ISBN13: 9781594601231
• ISBN10: 1594601232
• Edition: 2nd
• Format: Hardcover
• Copyright: 2005-05-26
• Publisher: Carolina Academic Press

Summary

This is a general book on jurisprudence designed for both the novice and more experienced student, which makes it suitable for first-year law students. It is the first book to distinguish and connect traditional theories of judicial decision-making (e.g., legal formalism, textualism, legal realism, and legal process) with "critical process" (which is critical theory transformed from a theory of legal criticism into a theory of judicial decision-making). Brooks breaks new ground on several other fronts as well - he employs an innovative framework that divides judicial decision-making models into the "logical method" and the "policy method;" offers a more nuanced conceptualization of judicial policy-formulation in which judges are seen as not only making policy, but also (and more typically) as discovering and vindicating policy; redefines " policy-making" in a manner that is different from our traditional understanding of the term; and synthesizes critical process into three judicial models: symmetrical, asymmetrical, and hybrid. The book is written in two parts. Part 1 (Traditional Process) discusses five major traditional judicial models, each reflective of either the logical method or the policy method. Part 1 ends with a synthesis of the traditional models (dividing them into three categories), which judges who have used the book find to be most useful. Part 2 (Critical Process) begins with a discussion of critical theory's central theme and operating elements and then transforms these features into a theory of outsider-oriented judicial decision making, something judges can actually use in deciding cases. Critical theory is thus transformed into "critical process."

Table of Contents

Traditional process
Legal formalism	p. 37
Scalian textualism	p. 61
Legal realism	p. 89
Sociological jurisprudence	p. 111
Legal process	p. 133
Philosophical foundations	p. 157
Levels of judicial analysis	p. 169
Critical process
Critical theory : central element	p. 193
Critical theory : operational elements	p. 229
Structure of critical process	p. 259
In re Kulko v. Superior Court	p. 269
In re Brown v. Board of Education	p. 283
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