Neal Devins and Allison Orr Larsen have discovered evidence that, before 2018, federal appellate courts rarely used en banc review as a partisan weapon, e.g. But many other courts show signs of fracture, not only with respect to the outcome of controversial cases, but in their basic understandings of the world around them. Supreme Court has been hotly contested for some time.
#THE LAST BASTION 2018 PROFESSIONAL#
It is what held the line against attempts to override the presidential election results in court challenges in several states, including Pennsylvania, Michigan, and Wisconsin.īut there are signs that, just as with other communities and institutions, the professional identity of lawyers is fracturing. And, while obviously not immune from political ideology, that shared professional identity is what gives shape to a common notion of what the “law” is and what it allows. Legal professionals inhabit a sort of imagined community with other lawyers, that allows them to use common methods to analyze legal issues and predict how they will be analyzed by others. That professional identity is the one that we start inculcating in law school it’s part of “how to think like a lawyer.”
#THE LAST BASTION 2018 HOW TO#
They have to trust that they share with other lawyers and judges and regulators a roughly similar set of intuitions that comprise part of their professional identity: shared intuitions about how to determine the answers to legal questions, such as what sorts of situations are unusual, what sorts of reasons are persuasive, what sorts of inferences are permissible. That in turn requires lawyers to have faith. And when they do consult lawyers, they have to trust that those lawyers can provide them with answers that others will respect. They have to trust that the information about the law they’ve received from schools, and from news media, and from government agencies, and from friends is accurate.
Indeed, for the law to work effectively, a lot of people have to daily not invoke formal legal processes, or even consult lawyers. The answer is mostly outside of the formal institutions and sources of law. How do people actually know what the law is? And why do they follow it?
The end.īut this view of the law as the output of the formal institutions of legal decision-making - not only courts, but administrative agencies and prosecutors’ offices - leaves out a large portion of the story. And then that answer somehow governs everyone and tells them what to do. The disputants go to court, and the court provides the answer. People have disputes, or are charged with crimes. The operation of the legal system taught in law school, and depicted on television, doesn’t require much trust or faith at all. And after that, in the words of Felix Frankfurter: “ first chaos, then tyranny.” Faith in courts to provide the law, and faith in lawyers to be able to say what the law is, will fade with it. It requires a form of trust that other actors in the system, even ordinary citizens, will generally coalesce around the same outcomes and interpretations.Īnd that sort of trust - any sort of trust in institutions, including law - is breaking down. Believing in the rule of law requires a sort of leap of faith. But a rule of laws that is subject to the whims of individual decisionmakers is no rule at all. Laws do not apply themselves, they are written and interpreted and applied by human beings. Of course, as the legal realists recognized, that’s all transcendental nonsense. The United States, like most democracies, takes pride in being governed by the “rule of law” it aspires to be what John Adams once called “ a government of laws and not of men.” There’s a sense, in this imagery, that law is something distinct from human beings that it’s a sort of machine, that operates autonomously to generate answers to legal questions.
0 kommentar(er)
