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Introduction and the Case of the Speluncean Explorers

Aniket Kesari

Law, Politics, and Society - Summer 2015

University of California, Berkeley

Who's Right?

  • Which interpretation is correct?
  • Does the proper interpretation depend on the facts?
  • How do varying interpretations challenge our conception of the legal system?

Justice Handy

  • Popular Opinion
  • Executive Won't Pardon?
  • Legal Realism

Morality

  • Morals, values, and ethics inform lawmaking
  • Should they also influence judicial decision making?

Justice Tatting

Justice Keen

  • Legal formalism
  • SOP?
  • Commonwealth v. Valjean
  • The role of precedent in legal reasoning?
  • Deciding not to decide?
  • Reasoned out conclusion or political decision?
  • Consequences if this was the majority?

Chief Justice Truepenny

  • Law was violated, must be enforced
  • Separation of powers?

Politics

  • Several Justices allude to the Executive in their opinions
  • How should the judiciary think about the other branches?
  • Defer to them?
  • Actively make decisions based on their actions?
  • Interact with them through direct appeals and messages?

The Case of the Speluncean Explorers

  • Facts?
  • What issues are raised by the case?
  • Philosophy/Ethics?
  • History?
  • Political Science?
  • Legal Institutions combine elements of several disciplines, modes of thought, etc.

Justice Foster

  • State of Nature
  • Functionalism
  • Judicial Activism?

Conclusion

  • How do institutions derive what the law is?
  • From inherent values?
  • From the political process?
  • In future readings, keep an eye toward where the author thinks the law comes from

What is a Legal Institution?

  • Branches of Government?
  • Lawmaking agencies?
  • What are the common features?
  • Are all of these institutions motivated by legal reasoning?
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