Chapter 11 Self-test Questions

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. This chapter introduces you to two significant schools of thought that constitute 'methodologies' of legal reasoning. These are called 'legal formalism' and 'legal realism'. Can you identify which is which?

Match each source label with its definition.

Legal formalism

Asserts that judicial decision-making is primarily a non-rule-based activity; that while rules may have some predictive value, they are 'rationally indeterminate' and judges are responding to the 'primary stimulus' of the facts. The law is 'rationally determinate' and legal reasoning operates as an autonomous form of reasoning (separate from moral or other forms of reasoning), such that judges can properly be said to follow and apply these rules

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Legal realism

The law is 'rationally determinate' and legal reasoning operates as an autonomous form of reasoning (separate from moral or other forms of reasoning), such that judges can properly be said to follow and apply these rules Asserts that judicial decision-making is primarily a non-rule-based activity; that while rules may have some predictive value, they are 'rationally indeterminate' and judges are responding to the 'primary stimulus' of the facts.

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. What are the three important trends identified in this chapter through which coding and AI may have the potential to transform legal decision-making processes, but which also raise important questions about how we model and use legal reasoning in digital applications?

The emergence of 'rules as code' techniques to accurately convert analog law into a digital form, as computer code correct incorrect

The increasing sophistication of digital legal information and research tools, such as Lexis or Westlaw correct incorrect

The development of online dispute resolution (ODR) correct incorrect

The use of code as rules techniques to 'hardwire' regulation into digital tools or devices correct incorrect

The potential combination of rule as code and code as rules techniques to build fully automated legal decision-making systems correct incorrect

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. What, according to this chapter, are they key qualities or characteristics that we look for in legal rules?

Legal rules are prescriptive, specific, and certain correct incorrect

Rules are injunctive, generalised, certain, and explainable. correct incorrect

Legal rules are categorical, vague, and explainable correct incorrect

Legal rules are non-categorical, vague, explainable, and predictive correct incorrect

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. By ________ determinacy we mean whether 'the legal criterion or category is structured such that one can determine, with a relatively strong degree of certainty, whether a rule has been violated in a given factual situation' (Surden, 2012:82).

Your response

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. Hart's idea that legal rules are _________ __________ [two words] means that the possibility of vagueness is inherent in any legal rule when it is confronted by an unanticipated or unplanned fact situation.

Your response

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. A related difficulty that lawyers have in interpreting the law is to overcome the '______' or grammatical ambiguities of rules that depend on often quite complex and multi-faceted sentence constructions.

Your response

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. Match each form of reasoning with its definition.

Inductive reasoning

This type of reasoning starts from a general situation and, through a series of inferences, reaches a conclusion on a specific point. As long as the major and minor premises are correctly constructed, then the conclusion has to be true. This is a more certain form of reasoning. This type of reasoning starts from a specific situation and, through a series of inferences from that specific situation, reaches a conclusion that is generally applicable. This form of reasoning provides less certain results than the other form because there is a greater margin of error in drawing inferences from one specific example to come to conclusions that are applicable to a range of situations.

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Deductive reasoning

This type of reasoning starts from a specific situation and, through a series of inferences from that specific situation, reaches a conclusion that is generally applicable. This form of reasoning provides less certain results than the other form because there is a greater margin of error in drawing inferences from one specific example to come to conclusions that are applicable to a range of situations. This type of reasoning starts from a general situation and, through a series of inferences, reaches a conclusion on a specific point. As long as the major and minor premises are correctly constructed, then the conclusion has to be true. This is a more certain form of reasoning.

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. ___________ is 'a non-identical or non-literal similarity comparison between two things, which has a predictive or explanatory effect' (Hunter, 2001:1206).

Your response

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. Drawing on Schauer, we suggest that 'hard cases' may be hard for one (or more) of three reasons. Match each reason with its description.

Because of the open texture of the rule

The relevant rule is linguistically vague or ambiguous, so that the case cannot be determined by a 'straightforward reading' of the rule On the facts there are two (or more) applicable rules, which dictate different outcomes to the case The rule may seem linguistically clear, but its application gives a 'wrong' answer according to some internal account of what the rule is intended to do, or some external moral or political or social standard

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Because the case is subject to conflicting rules

The relevant rule is linguistically vague or ambiguous, so that the case cannot be determined by a 'straightforward reading' of the rule The rule may seem linguistically clear, but its application gives a 'wrong' answer according to some internal account of what the rule is intended to do, or some external moral or political or social standard On the facts there are two (or more) applicable rules, which dictate different outcomes to the case

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Because there is a conflict with the rule's purpose or other policy goals

The rule may seem linguistically clear, but its application gives a 'wrong' answer according to some internal account of what the rule is intended to do, or some external moral or political or social standard On the facts there are two (or more) applicable rules, which dictate different outcomes to the case The relevant rule is linguistically vague or ambiguous, so that the case cannot be determined by a 'straightforward reading' of the rule

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. 'Rule scepticism' describes the legal realist view that judges determine cases on their factual merits, and that legal rules are in practice so radically indeterminate that they might as well not exist.

True correct incorrect

False correct incorrect