Doctrinal Reasoning as a Disruptive Practice
Journal of Law and Courts, Vol. 6, Issue 2 (Fall 2018), Forthcoming
40 Pages Posted: 26 Feb 2018 Last revised: 27 Feb 2018
Date Written: February 22, 2018
Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.
Keywords: courts, judicial decision making, rule of law, legal reasoning, doctrinal reasoning, legalism, judges, legal decisionmaking, law and humanities, law and literature, judicial behavior, legal history, ritual, performance, law and psychology, new legal realism, jurisprudence, empirical legal studies
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