By Bruce Anderson (auth.)
This e-book bargains with a critical challenge during the criminal career -a technique to the matter is sought and reached in a few simple shape. on the centre of this prob lematic is the query indicated by way of the identify: "What is the character of "discovery" in felony decision-making?" within the ultimate bankruptcy that challenge and the answer reached may be obvious to have ramifications through the complete box of criminal perform and conception. besides the fact that, the focal point of the argument is maintained first to specify competently the actual manifestation of the matter in various felony fields and secondly to reach at an exact simple method to this variety of difficulties. The presentation of the answer isn't dictated through the norms of readability and coherence, yet through the dynam ics of the fight to arrive the answer and through elements of the matter to be had to numerous sub-groups in the criminal career -theorists, judges, arbitrators. So, I commence from a comparatively frequent sector, discussions of discovery in felony conception prior to relocating to extra strange territory. This ebook isn't really an intensive survey of difficulties and writings on discovery. really, the strategic collection of difficulties and review of options around the first 4 chapters represents 4 points of the matter. these chapters invite the reader to upward thrust to the experience of prevalence of a unmarried challenge in a number of contexts.
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Additional info for “Discovery” in Legal Decision-Making
Example text
The terminological point is also important in requiring linguistic precision. Unless one espouses a simplified version of legal realism, one should not speak about "discovery" as constituting the judging or decision-making process unless one also includes testing. At the same time, in the decision-making process, the activities of puzzling and hunching which lead to tentative conclusions should be distinguished from the activities involved in testing the tentative conclusions, just as the realists have argued.
It is a picture of which the outline is not solid steel, but rubber, or - shall we say? "161 Radin concludes his analysis by writing "It is an undoubted fact that the chief purpose courts fulfil in giving us not merely a judgment but a classification of the judge by types and standards, is to make it easy for us to find out how they think. 4 Imaginary Cases Duncan Kennedy162 describes the process of legal reasoning from the point of view of a judge in a case in which, initially, the judge's preferred outcome seems to conflict with the outcome stipulated by the law - "how-I-want-to-come-out" versus "the law".
A judge must ''work'' to achieve an outcome. The law does, however, constrain this complex and ambiguous decision-making process. The constraining influence of the law is evident when he tests his intuition of the just outcome in the case by developing the best possible arguments for and against his intuition. He considers re-categorizing the case, policy arguments, and relevant lines of cases. He claims his arguments and conclusions are constrained by law in that he wants to legalize his position, to back up his preferred outcome with an argument that to do otherwise would violate the law.