Elmer’s Rule: A Jurisprudential Dialogue

20 Pages Posted: 17 Nov 2010  

Date Written: November 16, 2010

Abstract

Cardozo wrote of Riggs v. Palmer that this case that two analytical paths pointed in different directions and the judges selected the path that seemed better to lead to “justice”. Dworkin has claimed that the case demonstrates the triumph of certain “principles” over what are called “rules of law”. Taylor has argued that there was no “law” at all about murderers inheriting from testators before the actual decision in Riggs, and that consequently the decision itself was the only “law” that affected Elmer. All of these suggest that the decision in Riggs was largely unpredictable and therefore must have come as something of a surprise. But the notions of surprise and unpredictability raise a far more basic issue: what business does a court have in surprising anyone? Shouldn’t a court fulfill people’s expectations of the law? Shouldn’t a court behave as predictably as it possibly can?

Keywords: Jurisprudence, Rules of Law, Elmer’s Rule, Riggs v. Palmer, Positivism, Judicial Decisions, Predictive Theory of Law

JEL Classification: K10, K40, K49

Suggested Citation

D'Amato, Anthony, Elmer’s Rule: A Jurisprudential Dialogue (November 16, 2010). Iowa Law Review, Vol. 60, No. 5, 1974-75; Northwestern Public Law Research Paper No. 10-81. Available at SSRN: https://ssrn.com/abstract=1710317

Anthony D'Amato (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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