Northwestern University Law Review
judicial opinions, sociological jurisprudence, courts, legal realism
Courts | Jurisprudence | Law
Judges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts. Without this purpose, courts could more quickly and efficiently issue one-sentence rulings rather than set forth reasons. By issuing opinions, courts give actors a means of evaluating whether their actions are within the bounds of law. Under this predictive conception, when an opinion suggests a change in how a particular legal regime will apply in the future, one would expect individuals to adjust their behavior. The judicial system is leveraged in that appellate courts issue opinions in a small percentage of disputes; however, the explanations for how and why the appellate court decided particular cases are used to predict outcomes across a range of varying factual scenarios. But are the pronouncements in these appellate opinions in fact an accurate reflection of the law as understood in the world beyond the courthouse? In our study of the effects of a particular employment discrimination case in the Nevada casino industry, we found that judicial opinions had little salience in the communities that we had expected to be affected by the court's reasoning. In light of these limitations on the power of appellate opinions, we should reconsider their central role in our understanding of the relationship between law and those governed by it. We can better understand law by moving beyond our court-centric perspective to a view that includes community understanding.
Tracey E. George, Mitu Gulati, and Ann C. McGinley,
The New Old Legal Realsim, 105 Northwestern University Law Review. 689
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/656