legal theory, judicial decisions, legal realist thesis, wealth maximization principle, critical legal studies
Law | Legal History | Legal Theory | Public Law and Legal Theory
A growing number of legal scholars have recently revived the American legal realist thesis that legal theory does not dictate the result in any particular case because legal theory itself is indeterminate. A more radical group has added that theory can never constrain judicial practice. I will present a spectrum of types of legal theories to demonstrate that the position of the more radical group of writers is correct—that legal theory is inherently incapable of identifying which party should win any given case.
D'Amato, Anthony, "Can Any Legal Theory Constrain Any Judicial Decision?" (2010). Faculty Working Papers. Paper 70.