The Legal Model The legal model, the dominant paradigm in legal scholarship and education, depicts judicial

decision-making as a highly-structured, norm-governed process that allows very little room for justices to exercise personal discretion (George & Epstein, 1992: 324; Spaeth, 1979: 52) or to pursue their personal policy preferences (Owens & Epstein, 2006: 1). The model basically argues that judicial cases are decided in light of the facts of the case vis--vis precedent, the plain meaning of the Constitution and statutes, and the intent of the framers (Segal & Spaeth, 2002: 86). The legalist position is associated with the following claims and assumptions: Precedent determines judicial decisions. Judges merely find the law Variations in case facts account for variations in rulings. Ruling reversals are attributable to the discovery of new facts and/or the adoption of a different approach to legal interpretation Judicial decision-making is a highly-structured process / Precedent determines judicial decisions The legal model portrays judicial decision-making as a process governed by standards and norms. For Cook (1977), the legal model assumes that judicial decisions are made on the basis of standards set in constitution, statute, precedent, or court rule (Cook, 1977: 571 cited by Segal, 1984: 892). For Spaeth (1979), the norms that govern courts are (1) adherence to precedent, and (2) use of legal reasoning (Spaeth, 1979: 52). Adherence to precedent is none other than the principle of stare decisis1 which requires justices to abide by or adhere to what has previously been decided (Spaeth, 1979: 52) or to honor the legal doctrine generated by past cases (George & Epstein 1992: 324).

According to Perell (1987): Stare decisis literally translates as to stand by decided matters. The phrase stare decisis is itself an abbreviation of the Latin phrase stare decisis et non quieta movere which translates as to stand by decisions and not to disturb settled matters (http://legalresearch.org/docs/ perell.html)

The norm requiring legal reasoning meanwhile instructs justices to follow what Levi describes as a three step process2 in reaching decisions. The process involves: (1) observation of a similarity between cases, (2) announcement of the rule of law inherent in the first case, and (3) application of that rule to the second case (Levi cited by George & Epstein, 1992: 324). The legal model thus proposes that judicial decisions are inevitable conclusions based on precedents (Caporale and Winter, 2002: 694). Spaeth enumerates the norms of legal reasoning that justices employ in constitutional interpretation and statutory construction.3 In constitutional interpretation, justices normally rely on a combination of the following legally-accepted procedures: (a) ascertaining the intention of the framers; (b) determining the original meaning of words; (c) using syllogism; and (d) utilizing the adaptive approach i.e., interpreting the Constitution in light of changing conditions and the lessons of experience. In statutory construction, justices employ two legally-accepted devices: (a) the plain-meaning rule; and (b) the examination of legislative history to determine what the legislators really meant as distinct from what the law, rule, or regulation says (Spaeth, 1979: 6671). Judges merely find the law In recognition of the deductive and norm-governed nature of the judicial process, the legal model of judicial decision-making tends to portray judges as technicians who mechanically apply rules to decide cases4 (Wahlbeck, 1997: 780). With precedent as the key determinant or predictor of judicial outcomes (George & Epstein, 1992: 324), judicial decision-making is presented as nothing more than finding or discovering the law (Segal, Spaeth & Benesh, 2005: 22; Spaeth, 1979: 3; Pritchett, 1948: 15). Variations in case facts account for variations in rulings As Levis three-step process implies, the legal model posits that similar cases require justices to apply similar rules employed in past similar cases and to render similar decisions. To
2

Levis three step process is also known as reasoning by example (George & Epstein,1992: 323-337).

Constitutional interpretation is employed when the Court is deciding whether a particular law or administrative action violates a constitutional provision while statutory construction is used when the Court interprets the meaning of a statute, treaty, executive order, or administrative ruling as it affects the parties in a case (Martin, 2001: 8-9). 4 This view of judicial decision-making is often referred to as mechanical jurisprudence (George & Epstein, 1992: 24)

account for variations in judicial decisions in similar cases, legalists speak of variations in the facts of the case or case facts5 i.e., the particular factual or material circumstances or details of a case that are considered legally relevant to its resolution (Vejerano, 1991: 23). In the legalist depiction of the judicial process, the sort of circumstances that comprise case facts are largely assumed to be fixed and independent of subjective judicial attitudes (Wahlbeck, 1997: 782 footnote 2).

Ruling reversals are attributable to the discovery of new facts and/or the adoption of a different approach to legal interpretation Despite its tendency to depict judicial decision-making as a mechanical process, the legal model acknowledges that previous Court rulings may be reversed. Inasmuch as judicial decisions are said to result from the application of precedent to the facts of the case, the overruling of a previous Court decision is attributed to the discovery of previously-hidden relevant facts, to changed circumstances, and the acquisition of additional knowledge (Spaeth, 1979: 60). Reversals may also be the result of the adoption of a different approach to legal interpretation as suggested by Spaeth (Spaeth, 1979: 64-75). Recognizing that past judicial errors necessitate correction, legalists argue that ruling reversals are consistent with the Courts commitment to finding the law (Spaeth, 1979: 3).

Scholars often interchange case facts with facts of the case, case characteristics, or case attributes (Maveety, 2002: 11; Morgan, 1966; Segal & Spaeth, 2002).