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Reenchanting The Law: The Religious Dimension Of Judicial Decision Making, Mark C. Modak-Truran
Reenchanting The Law: The Religious Dimension Of Judicial Decision Making, Mark C. Modak-Truran
Journal Articles
Without a religious justification in the law, judges cannot fully justify their decisions in hard cases from within the law. The law must be indeterminate because the Establishment Clause proscribes this full justification. This does not mean that the Establishment Clause prohibits judges from fully justifying their decisions during their deliberations about hard cases. It only prohibits judges from including that full justification in their written opinions. Deliberation and explanation are separate stages of judicial decision making that should be kept distinct. Given this distinction, my thesis is that judges should fully justify their decisions in hard cases by relying …
A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran
A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran
Journal Articles
Judges currently face a daunting task. On the one hand, they are increasingly aware of the indeterminacy of the law, while on the other hand, they face an explosion of fact. Judges are floating on shaky legal timbers in a sea of documents, deposition transcripts, affidavits, oral courtroom testimony, and expert opinions. The explosion of fact alone presents monumental problems for deciding cases without unduly simplifying or reducing this factual complexity. For example, both federal and state judges are implementing case management systems to deal with their crushing case loads and the increasing complexity of their cases. In addition, there …
Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran
Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran
Journal Articles
Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness, conventional wisdom maintains that being a good judge does not require being a good person. Even theorists sympathetic to a relationship between law and morality balk at making moral virtue a prerequisite of judicial decision making. Rather, many contend that judicial decision making is a …
The Religious Dimension Of Judicial Decision Making And The Defacto Disestablishment, Mark C. Modak-Truran
The Religious Dimension Of Judicial Decision Making And The Defacto Disestablishment, Mark C. Modak-Truran
Journal Articles
Despite the de facto disestablishment of religion, I will try to illustrate the centrality of religion as a resource for understanding judicial decision making. The central question for this inquiry is: What, if any, is the role of religious beliefs in judicial decision making?