Episode 166: Brooding Omnipresence

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 and writing

Stephen Sachs, Finding Law

Erie Railroad Co. v. Tompkins

Yes, I said "statistics," but I know it's Herbert Spencer, Social Statics

Felix Cohen, Transcendental Nonsense and the Functional Approach

Oral Argument 28: A Wonderfule Catastrophe (the one on Erie)

Special Guest: Stephen Sachs.