Doctrinal Reasoning as a Disruptive Practice

Journal of Law and Courts, Vol. 6, Issue 2 (Fall 2018), Forthcoming

U. of Pittsburgh Legal Studies Research Paper No. 2018-05

40 Pages Posted: 26 Feb 2018 Last revised: 27 Feb 2018

See all articles by Jessie Allen

Jessie Allen

University of Pittsburgh - School of Law

Date Written: February 22, 2018

Abstract

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

Suggested Citation

Allen, Jessie, Doctrinal Reasoning as a Disruptive Practice (February 22, 2018). Journal of Law and Courts, Vol. 6, Issue 2 (Fall 2018), Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2018-05. Available at SSRN: https://ssrn.com/abstract=3128553

Jessie Allen (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-624-2175 (Phone)
412-648-2649 (Fax)

HOME PAGE: http://www.law.pitt.edu/people/jessie-allen

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