• This book is about theoretical disagreement in law” – pg 11 Trying to see what this is all about.

“I am concerned with issue of law, not reason judges may have for tempering their statements of what it is.” It centers on judges in black robes.

  • Critics may say project is misapplied and incomplete and obscure. But, “theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse.”
  • “This book take up the internal participants point o view, tries to grasp argumentative character of our legal practice. “ “We will study formal legal argument from judge’s point of view.” Citizens and politicians also important, but judicial argument more explicit and more influential on legal discourse.


  • Let’s see how PF thesis distorts legal practice by looking at actual cases.
  • Elmer’s Case
    • Elmer murdered grandfather in hope of getting will he knew he left for him. Caught, put in jail. Residuary legatees were grandfathers daughters, they sued administrator of will, demanding that property go to them not Elmer. New York statutes of wills was silent.  Judges felt compelled by law, must give to elmer, but disagreed about what law actually was, what statute required when properly read.
    • How possible? Like a poem, we agree on literal words, but not the second sense. So judges disagreed on impact of words of statue on legal rights of elmer, and daughters because disagreed about how to construct real statute.
    • Dissenting Judge Gray: Proposed literal reading, must look at statute context-independent, voted for Elmer. Much to say for this, because we don’t know if grandfather changes mind, can’t substitute own opinion. Also, would be double punishment if Elmer, after jail, also looses inheritance.
    • Majority Judge Earl:
      • *“It is familiar canon that a thing which is within intention of makers of statute is as much within statute as if it were within the letter; and a thing in letter but not in intention, is not in the statute.”. And here, with murderers, legislators had no intention either way. Earl meant that statue doesn’t have any consequences the legislators would have rejected if they had contemplated it.
      • Also, must construct statute to make larger legal order coherent. Here – no one should profit from their own wrong.
    • *Comment: Most important point from case: dispute was not about whether follow law or adjust law. It was dispute about what the law was, about what the real statute really said.
  • The Snail Darter Case
    • Facts: Endangered Species act gave minister of interior special power to make sure nothing happens that endangers it. Conservationists convinced it to protect the snail darter, a fish of no importance, and stop a building project by TVA.   Tenessee Valley authority argued that because project substantially underway, act doesn’t apply and cited acts of Congress in support.
    • Chief Justice Warren Burger: found that dam must be halted. Said that when text is clear the Court has no right to refuse to apply it just because it believes the results silly. But rejected Earl’s principle about way in which congressional intention is relevant. “Not for us to speculate on whether Congress would have altered its stance had specific situation been anticipated.”   (bit like Gray, but less rigid)
    • Justice Lewis Powell: Courts should accept an absurd result only if they find compelling evidence that it was intended. (a bit like Earl’s, but substitutes common sense for principles of justice found elsewhere in law).
    • Comment: Again, they disagreed about the question of law; about how judges should decide what law is made by particular text enacted by Congress when congressmen had the kinds of beliefs and intentions both justices agreed they had in this instance.





  • Mr Learned Hand, “I fear lawsuits more than death or taxes.” In fact, civil suits can be more consequential than all but most momentous criminal trials.
  • Moral dimension: risk of public injustice, e.g., innocent person convicted of crime.
  • IN UK and US, judicial decisions affect more people because law becomes what judges say it is. (Constitutional position of Supreme Court in US, e.g. In 1954 decided cannot segregate schools by race, led to big social revolution).
    • UK Eg.
      • 1: 19th English judges said factory worker cannot sue employer for compensation if injured through carelessness of another employee because he “assumes risk fellow servants may be careless.”
      • 2: 1975, HL fixed time Cabinet minister must wait before publishing his memoirs.


  • Thus, matters what judges think law is. Lawsuits raise 3 issues:
    • Issue of fact: What happen?
    • Issue of Law: What is pertinent law? Does it allow damages?
    • Political morality/fidelity: Is denying compensation unjust, should judges ignore law?
  • Judges usually disagree most about issue 2.Mostly in two ways
    • Empirical Disagreement: May agree about grounds of law (what lays beneath every proposition of law, e.g., 55 miles in california is proposition, the ground of law is saying aye in state legislature) but disagree if those grounds are in fact satisfied in case
    • Theoretical Disagreement: May disagree about grounds of law, which underlie propositions.
  • Empirical disagreement simple. People disagree about what words are in statue books same way they disagree about any other factual matter.
  • Theoretical disagreement: We see how judges disagree about what law really is although they agree on what the statute books say.
  • Lay public unaware of this problem, they are more concerned with fidelity. But fidelity not live issue in uk/us courts.
  • In trivial sense, judges make law. Though they say that what they do is just correct perception of true grounds of law which may not have been recognized before. Thus, invent v discover debate is essentially theoretical disagreement in disguise. Why, because would be easy if no theoretical disagreement, could just check what law was. So while invent/discover debate part of theoretical disagreement, but doesn’t help us because real issue never rises to the surface.


  • “Plain fact view”: Our jurisprudence has no plausible theory of theoretical disagreement in law. Most legal philosophers evade question, say that it is an illusion, and that lawyers and judges all agree on grounds of law.
    • Claim: law only matter of what legal institutions have decided in past. And when they have what looks like theoretical disagreements, they are really disagreeing about issues of morality and fidelity, about what it should be, not what it is.
    • Popular (conservative) view: Judges must follow law not improve it. If they don’t, they are bad judges, usurpers, destroyers of democracy. Other (progressive) view: Judges should improve law, bad judge is the mechanical judge.
    • Note, academic, plain fact view, accepts that sometimes there is no law at all. This again gives rise to division of opinion. How should they fill gaps?
    • Jerome Frank draws radical conclusion from sophisticated version of plain-fact view: say that past institutional decision almost always vague of ambiguous or incomplete – there is never really law on any topic or issue, only rhetoric judges use to dress up decisions actually dictated by ideological or class preference.
    • Not all accept plain fact view. Some that reject it indulge in unstructured “craft”, mysteriously, romantic, essentially what judge o the day thinks better or worse. But not enough discipline in that view to call it any developed theory.
    • Later will show evidence why plain fact view is evasion rather than theory. But if correct, if judges. Lawyers, laymen, etc have no good answer to Question of how theoretical disagreement is possible and what it is about, we lack apparatus for intelligent criticism of what our judges do. Generally, governed do not understand courts nearly well enough.