The Nature of the Judicial Process
In this famous treatise, a Supreme Court Justice describes the conscious and unconscious processes by which a judge decides a case. He discusses the sources of information to which he appeals for guidance and analyzes the contribution that considerations of precedent, logical consistency, custom, social welfare, and standards of justice and morals have in shaping his decisions.
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31 Harvard L. R. 9 Modern action adherence to precedent Alan Dugan analogy applied Briitt Buick Motor Co choice Cleanth Brooks Columbia L. R. common law conduct consistency constitution Continental Legal Hist contract courts custom customary morality decision Duguit duty Ehrlich embodied equity Eugene O'Neill field function gaps Geny George Gaylord Simpson Gnaeus Flavius Gray Holmes ideal illustrations interpretation judge judgment judicial process Jurisprudence juristische Logik jurists justice Legal Philosophy Series legislator less liberty limits litigants logic mean ment method of philosophy method of sociology mind Modern Legal Philosophy Munroe Smith Nature and Sources path philoso philosophy of law Pollock positive law Pound principle quasi-contracts reason Rechts result right and wrong Roman Law Roscoe Pound rules of law Saleilles Salmond Science sense shape spirit standards statute subconscious supra surety tendency theory tion transl truth Yale L. J.
Page 118 - Such matters really are battle grounds where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.
Page 167 - Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.
Page 80 - I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been 22 understood by the traditions of our people and our law.
Page 59 - This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which, are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signifi cation. 2. Particular customs; which, for the most part, affect only the inhabitants of particular districts.
Page 66 - The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. "Ethical considerations can no more be excluded from the administration of justice which is the end and purpose of all civil laws than one can exclude the vital air from his room and live.
Page 141 - The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.
Page 79 - It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
Page 171 - The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making.
Page 13 - the total push and pressure of the cosmos," which, when reasons are nicely balanced, must determine where choice shall fall. In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.