UNIV 3784 Chapter Notes - Chapter 8: Functional Response
Document Summary
The individualism kennedy describes seems to be a chastened one, bloodied and even bowed a bit by the altruist critique mounted by legal realists such as hale, Duncan kennedy- form and substance in private law adjudication. Altruist views on substantive private law issues lead to willingness to resort to standards in administration, while individualism seems to harmonize with an insistence on rigid rules rigidly applied. Individualist judges are restrained from doing the right thing because they have a wrong faith in judicial neutrality. Legal process theorists believe judges should use norms to make decisions on cases within core set of issues while those not in core should be left to legislature but there is no consensual core. Judges should follow altruism because dramatic impact of decisions might help persuade some adversaries and because they contribute to indispensable task of imagining an altruistic order. Critics don"t all believe the formalist belief that only specialized law stuff separate from politics is law.
