15 May WHAT IS BEHIND THE CALL TO “TRANSCEND MERE TECHNIQUE”?
Some jurists have said that procedure is the heart of the law–the way a decision is made is more important than what decision is made. Evaluate the decisions in The Queen v. Dudley and Stephens and Cook v. State. If these decisions were made in a judicious way, should we be satisfied? Should outcomes and how individuals are affected matter in legal cases? Be sure the support your analysis with readings from our syllabus.
2. Consider the following statement: “Values must be explained, demonstrated where possible or otherwise fully debated if law and legal process are to transcend mere technique. As the dialectic over values unfolds, a socially desirable tension arises between rules and values…” (Bonsignore, et al 2006: 45). Discuss this quote in light of the readings and discussions of the class (you pick which readings). Why is debate necessary? What is behind the call to “transcend mere technique”? And what is socially desirable about the tension between rules and values?
SECTION B
The following quote is from an article you have not read. It is by Pierre Schlag, a professor of law at the University of Colorado at Boulder. He writes: “Judges quite understandably want their juridical identities, their roles, and their actions to be authorized. They want authorization in several senses. In one sense, judges want their own identities to be underwritten by a greater, grander power–a legitimating power like “The Text,” “The Framers’ Intent,” “Justice,” or less grandly, “Doctrine.” Not only do these “authoritative sources” help legitimate…the exercise of judicial power, they also help to diffuse and distribute judicial responsibility.” Analyze these claims in light of Galanter, Llewellyn, Frank, Garth and Sterling, Kagen, et aland any other texts or lectures you wish to incorporate into your response. Keep in mind as you write that Schlagsays a number of times that he does not intend this as a criticism of judges. Why not?
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