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Unpublished Paper
APPELLATE JUDGES AND PHILOSOPHICAL THEORIES: JUDICIAL PHILOSOPHY OR MERE COINCIDENCE?
ExpressO (2010)
  • Gerald R. Ferrera
  • Mystica M. Alexander
Abstract

Judicial reasoning found in appellate court decisions creates the substantive law relied upon to formulate policy in the private and public sector. Inevitably some will be adamantly opposed to the decisions and will participate in public debate to formulate change. This paper argues that judicial reasoning is based on a judicial philosophy supported by a theory that, once recognized and understood, enables a greater appreciation of judges’ decisions. A number of prominent judicial philosophers are identified and their philosophy is explained using current landmark cases. The final part of the paper uses the United States Supreme Court decision of Ricci v. DeStefano and applies judicial philosophy to exemplify its use in decisional law. The authors argue that this process of applying philosophical theory to judicial reasoning renders a more meaningful understanding of decisional law and will clarify public debate of the issues.

Word Count (Text): 10,396 Word Count (Footnotes): 3,153 Word Count (Total): 13,549

Keywords
  • Jurisprudence,
  • legal theory,
  • judicial decision-making
Disciplines
Publication Date
2010
Citation Information
Gerald R. Ferrera and Mystica M. Alexander. "APPELLATE JUDGES AND PHILOSOPHICAL THEORIES: JUDICIAL PHILOSOPHY OR MERE COINCIDENCE?" ExpressO (2010)
Available at: http://works.bepress.com/jonathan_darrow/4/