Master of Studies in Law


Studies in Law


Dr. Randal Graham


What determines the outcome of judicial decisions? A traditional answer to this question is that it involves a complex application of rules derived from the reasons for judgment of analogous common law decisions and applicable statutes under the doctrine of stare decisis. This answer is problematic. One significant problem of this answer is its inability to explain the outcome of cases where the judgment does not appear to be based on these traditionally recognized sources. An alternative answer, provided by a particular field of legal scholarship, Legal Realism, posits that “other” factors make a significant impact on the outcome of a given case. A recent legal realist theory offered by R. Graham utilizes principles of Legal Realism, Economics, and Interpretive Theories to form a framework for describing the actual constraining forces acting on judges when they are tasked with interpreting statutes. Central to this theory is the influence of the deciding judge’s self-interest on the outcome of his or her interpretive decisions. The primary purpose of the current paper is to extend Graham’s multi-disciplinary theory from its current application to statutory interpretation to now also include common law interpretation. Secondarily, this paper will provide a multiple-case example of how this interpretive theory would apply to a series of judgments related to limits placed on cross-examination that are particularly troublesome for the seemingly inconsistent and surprising decisions.