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The New Legal Process: Games People Play and the Quest for Legitimate Judicial Decision Making

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The New Legal Process: Games People Play and the Quest for Legitimate Judicial Decision Making Washington University Law Review Volume 77 Issue 4 January 1999 The New Legal Process: Games People Play and the Quest for Legitimate Judicial Decision Making Ronald J. Krotoszynski Jr. University of Alabama Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Dispute Resolution and Arbitration Commons, Entertainment, Arts, and Sports Law Commons, Jurisprudence Commons, Legal History Commons, and the Rule of Law Commons Recommended Citation Ronald J. Krotoszynski Jr., The New Legal Process: Games People Play and the Quest for Legitimate Judicial Decision Making, 77 WASH. U. L. Q. 993 (1999). Available at: https://openscholarship.wustl.edu/law_lawreview/vol77/iss4/1 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Law Quarterly VOLUME 77 NUMBER 4 1999 THE NEW LEGAL PROCESS: GAMES PEOPLE PLAY AND THE QUEST FOR LEGITIMATE JUDICIAL DECISION MAKING RONALD J. KROTOSZYNSKI, JR.* Once upon a time, many in the American legal academy subscribed to a theory of judicial decision making called “Legal Process Theory.” Scholarly giants like Professor Henry Hart and Professor Herbert Wechsler argued (quite famously) that the particular result in a given case was far less important than the analytical tools used to justify the result.1 This argument was a response to the problem of radical indeterminacy associated with the Legal Realist position set forth by leading academics in the 1920s and 1930s.2 In essence, Hart and Wechsler argued that it was much more important to focus on how judges reasoned to a result—the forms of authority cited, the rank order of authority, the “neutral” application of formal rules regarding the rank and order of authority across cases with disparate facts, and so forth—than to determine whether the judge had an * Visiting Professor of Law, Washington and Lee University School of Law; Paul Beam Fellow and Associate Professor of Law, Indiana University School of Law—Indianapolis. I am indebted to Professor Ron Wright for suggesting that I undertake this project. I also am grateful for the helpful comments and suggestions provided by Professors Gary Spitko, Michael Heise, Dan Cole, Alan Rau, S. Elizabeth Wilborn-Malloy, Florence Roisman, Lars Noah, Gerry Moohr, Bob Brookins, Jeff Cooper, John Weistart, Jerry Bepko, Lash LaRue, and Stephen Ware. As always, any errors or omissions are mine alone. 1. See, e.g., HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 2-6, 152-58, 642-47 (1994); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 15-20 (1959). Professor Wechsler’s article is one of the most heavily cited law review articles of all time. See Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 CHI.-KENT L. REV. 751, 767 (1995) (reporting that Toward Neutral Principles is the second most-cited law review article of all time, with at least 968 citations from 1956 to 1995). 2. See LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); see also Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465 (1988); Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151 (1985). 993 Washington University Open Scholarship p1053+Ware.doc 03/22/00 9:28 AM 994 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 77:993 Oedipal complex or belonged to the John Birch Society as a youth.3 At the risk of seeming terminally naive, I would like to argue for a return to Legal Process Theory as a baseline assumption for legitimate judicial decision making. Contemporary jurisprudence is both hopelessly subjective and hopelessly substantive. To a tremendous degree, legal academics are talking past each other in increasingly specialized jargon known only to the members of particular scholastic sects.4 It is highly unlikely that academics, the bench, and the practicing bar will ever reach broad agreement on a particular substantive end that would perforce legitimate the work of courts of law. For example, some have suggested that legitimate judicial decision making should consistently maximize efficiency5 or consistently give voice to the disempowered.6 Realistically, it is also unlikely that we will ever agree on a process that produces legitimate or acceptable results in particular cases on a routine basis. Nevertheless, a project dedicated to defining how judges should go about their task has a better chance of securing broad-based consensus than a project dedicated to delimiting precisely what the ultimate substantive ends 3. See Wechsler, supra note 1, at 15, 19-20. 4. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 42-57 (1992); Richard A. Posner, The Decline of Law As An Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761 (1987); see also Paralyzed Veterans of Am. v. D.C. Arena, L.P., 117 F.3d 579, 584 n.2 (D.C. Cir. 1997) (expressing appreciation of “serious discussions of legal doctrine, increasingly rare in the leading law journals”); Dennis W. Arrow, Pomobabble: Postmodern Newspeak and Constitutional “Meaning” for the Uninitiated, 96 MICH. L. REV. 461 (1997) (parodying current trends in legal scholarship). 5. ROBERT H. BORK, THE ANTITRUST PARADOX (2d ed. 1993); RICHARD A. POSNER, AN ECONOMIC ANALYSIS OF LAW (5th ed. 1998); Frank H. Easterbrook, The Supreme Court 1983 Term— Foreword: The Court and the Economic System, 98 HARV. L. REV. 1 (1984); Richard A. Posner, Social Norms and the Law: An Economic Approach, 87 AM. ECON. REV. 365 (1997); cf. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972) (applying, but also criticizing, the use of economic modeling techniques to predict human behavior because models can bring order to disparate cases but also “generate boxes into which one then feels compelled to force situations which do not truly fit”); Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV. L. REV. 713 (1965) (developing a theoretical framework for assigning the cost of accidents using economic analysis of law but also endorsing the importance of “collective political judgments,” judgments that strongly implicate a community’s moral values about particular activities, to assigning the costs of accidents); Jerome Culp, Judex Economicus, 50 LAW & CONTEMP. PROBS. 95 (Autumn 1987) (criticizing Judge Posner’s use of economic analysis in traditionally non-economic areas of the law such as affirmative action, and for paying insufficient attention to values other than wealth maximization, such as fairness or equity). 6. See, e.g., RICHARD E. DELGADO, THE RODRIGO CHRONICLES: CONVERSATIONS ABOUT AMERICA AND RACE (1995); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); PATRICIA WILLIAMS, THE ALCHEMY OF RACE (1987); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365; Jerome Culp, Toward a Black Legal Scholarship: Race and Original Understanding, 1991 DUKE L.J. 39; Kimberlé Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Legal Theory, and Antiracist Politics, 1989 U. CHI. LEGAL F. 139. https://openscholarship.wustl.edu/law_lawreview/vol77/iss4/1 p1053+Ware.doc 03/22/00 9:28 AM 1999] THE NEW LEGAL PROCESS 995 of judicial activity are or should be. In this respect, legal academics could learn a valuable lesson from the athletic arena, a place where competitors routinely taste the “thrill of victory” and the “agony of defeat.” The analogy, in my view, provides a compelling argument in favor of a new process-based jurisprudence.7 Each sport, whether football or figure skating, requires rules and judges to enforce those rules. As in law, both the substantive content of those rules and their application is subject to debate (and often this debate can be quite heated).8 Remarkably, however, the legitimacy of the results of sporting contests are seldom seriously contested.9 A “bum call” does not lead the general public to reject a particular team’s claim to national preeminence, even if the “bum call” undoubtedly had a significant impact on the ultimate result.10 Arguably, the process legitimizes the result, even when those 7. I acknowledge that some scholars have objected to the use of “sports metaphors” as hopelessly “masculinist” and as reinforcing bad professional habits. See, e.g., Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1, 59 n.154 (1992); Elizabeth G. Thornburg, Metaphors Matter: How Images of Battle, Sports, and Sex Shape the Adversary System, 10 WIS. WOMEN’S L.J. 225 (1995); Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1337 (1988). This Article does not seek to equate the litigation process with sport, or to encourage the use of sports metaphors in either law school classrooms or courtrooms. Rather, it examines how process values contribute to the general public’s interest in competitive athletics and how these process values differ from those associated with litigation in the public courts. Moreover, in the era of Mia Hamm and Rebecca Lobo, I am not at all certain that an interest in competitive athletics should carry with it gendered connotations—such an assumption is itself highly essentialist. 8. See Schroeder, supra note 7, at 63-64. Controversy surrounding a call at the final game of the 1999 Stanley Cup series resulted in an immediate change in the enforcement of the “skate-in-crease” rule, with the NHL’s owners deciding to prohibit the use of instant replay to determine crease violations on goals.
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