Do judges make law or find and apply it? Or both? Long ago, the realists seemingly won the argument that judging inevitably involves making law, not just identifying it. We talk with Stephen Sachs, who argues for the rehabilitation of the possibility that judges acting in good faith can indeed find the law. Will Stephen and Joe clash over what this means for Erie? You'll just have to listen to find out.
This show’s links:
Stephen Sachs' faculty profile (https://law.duke.edu/fac/sachs/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=532296)
Stephen Sachs, Finding Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443)
Erie Railroad Co. v. Tompkins (https://scholar.google.com/scholar_case?case=4671607337309792720)
Yes, I said "statistics," but I know it's Herbert Spencer, Social Statics (https://en.wikipedia.org/wiki/Social_Statics)
Felix Cohen, Transcendental Nonsense and the Functional Approach (http://www.jstor.org/stable/1116300?seq=1#page_scan_tab_contents)
Oral Argument 28: A Wonderfule Catastrophe (http://oralargument.org/28) (the one on Erie)
Special Guest: Stephen Sachs.