In Defense of an Unsystematic Science of Law

Invalid court orders

“…'The law' as a generalization of legal judgments is always incomplete since it is always concerned with a specific question not yet decided, as well as thousands already decided The prognosis of that decision involves an estimate in advance of the factors that will determine the future judgment In spite of the possible variety and number of these factors, the advance estimate is so highly probable in a number of cases that the statement of the law can be made with a fair degree of certainty and precision, and no decision will be required to test its accuracy since most men will regard the 210 Ibid at para 66 Hoexter (note 11 above) at 213 211 An issue that has also arisen in the UK In the past, the courts held that they had no power to order that new understandings of legislative provisions (or their development of the common law) were to be prospective only decision as a foregone conclusion Decisions will consequently be called for chiefly in what may be called marginal cases, in which prognosis is difficult and uncertain. It is this fact that makes the entire body of legal judgments seem less stable than it really is 217 Secondly, there are tools in the law that the courts can use to ameliorate the sometimes-harsh consequences of the exception, such as limiting any finding that certain courts don't have authority to apply prospective only Thirdly, as I have stressed throughout this article, Motala constrains the exercise of public power by requiring judges to decide cases only when they have authority to do so…”

Getting Real or Staying Positive:LegalRealism(s),LegalPositivism and the Prospects of Naturalism in Jurisprudence

“…For instance, Llewellyn explicitly limited the under‐determination claim to “any case doubtful enough to make litigation respectable” (Llewellyn , 1239), and in the same vein Radin emphasized that “[judicial] decisions will consequently be called for chiefly in what might be called marginal cases, in which prognosis is difficult and uncertain. It is this fact that makes the entire body of legal judgments seem less stable than it really is” (Radin , 1271).…”

The Case for Judicial Review: Judges as Agents and Judges as Trustees

“…Grundfest and Huang (2005). 7 This argument was made early on by American legal realists who argued that adjudication made legal rules appear more indeterminate than they really are because clear cases are settled outside the court system (Llewellyn 1931(Llewellyn : 1239Radin 1942Radin : 1271 the Basic Law, which provides for the indefinite right to "the free development of one's personality" (Dyevre 2008). Based on information from the Supreme Court Database, 8 Figure 2 lists the constitutional clauses most frequently considered in US Supreme Court decisions.…”