Comments on: The Judicial Process, Defined http://law.marquette.edu/facultyblog/2008/10/21/the-judicial-process-defined/ Sat, 11 Feb 2012 21:08:33 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Michael R. Vescio http://law.marquette.edu/facultyblog/2008/10/21/the-judicial-process-defined/comment-page-1/#comment-852 Michael R. Vescio Wed, 22 Oct 2008 17:19:15 +0000 http://law.marquette.edu/facultyblog/?p=1438#comment-852 As a practitioner whose livelihood depends in large measure on the outcome of the judicial process, I am focused on issues of the judicial process daily. You should consider me -- and legal practitioner-writers like me -- a potential participant in the movement aimed at understanding this process intellectually. As a practitioner whose livelihood depends in large measure on the outcome of the judicial process, I am focused on issues of the judicial process daily. You should consider me — and legal practitioner-writers like me — a potential participant in the movement aimed at understanding this process intellectually.

]]> By: Chris King http://law.marquette.edu/facultyblog/2008/10/21/the-judicial-process-defined/comment-page-1/#comment-822 Chris King Tue, 21 Oct 2008 21:36:17 +0000 http://law.marquette.edu/facultyblog/?p=1438#comment-822 I think the most interesting questions raised by studying the judicial process are what are judges doing when they decide cases and what should judges be doing when they decide questions. From the perspective of teaching or learning the material, the most difficult aspect of these questions is that there is no "right" answer. Judges are generally reluctant to discuss how they go about making their decisions, with notable exceptions like Judge Posner. There does not appear to be a dominant theory of the judcial process. In fact, the numerous competing theories all have valid insight into the judicial process. From the material that I've been exposed to as a student in the "Judging and the Judicial Process" seminar, the theories explaining the judicial process do not fall into relatively neat categories that might serve to frame the discussion, like judicial activism vs. strict constructionist or original intent vs. a living constitution. I think that the study of the judicial process has difficulty catching on as a distinct field because of the level of involvement (from both teacher and student or from author and reader) that goes into understanding just the basics of what is being discussed. I think the study of the judicial process is important both academically and practically. After all, since judges are the ones who say what the law means, surely the legal profession should take some time to try and understand what judges are doing when determining what the law means. I think the most interesting questions raised by studying the judicial process are what are judges doing when they decide cases and what should judges be doing when they decide questions. From the perspective of teaching or learning the material, the most difficult aspect of these questions is that there is no “right” answer. Judges are generally reluctant to discuss how they go about making their decisions, with notable exceptions like Judge Posner. There does not appear to be a dominant theory of the judcial process. In fact, the numerous competing theories all have valid insight into the judicial process. From the material that I’ve been exposed to as a student in the “Judging and the Judicial Process” seminar, the theories explaining the judicial process do not fall into relatively neat categories that might serve to frame the discussion, like judicial activism vs. strict constructionist or original intent vs. a living constitution.

I think that the study of the judicial process has difficulty catching on as a distinct field because of the level of involvement (from both teacher and student or from author and reader) that goes into understanding just the basics of what is being discussed. I think the study of the judicial process is important both academically and practically. After all, since judges are the ones who say what the law means, surely the legal profession should take some time to try and understand what judges are doing when determining what the law means.

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