{"title":"Just Costs","authors":"Frederick Wilmot-Smith","doi":"10.1093/oso/9780198850410.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198850410.003.0012","url":null,"abstract":"This chapter considers the normative foundations of the law of costs, proposing a structure for analysis. Despite the central importance of the expense of justice to the practice of law, the law of costs is rarely a topic of theoretical inquiry. This chapter begins with a distinction between individualist and holist theories, suggesting that ‘loser pays’ rules are usually thought justified on individualist terms. This, the chapter argues, is a mistake; the law of costs is justified, if justified, by a holistic theory. So understood, the law of costs is part of the system by which the law controls access to and the distribution of its own resources. If that is correct, the law of costs is justified only if the distributive arrangement is justified. Civil procedure can only be done well, this suggests, if linked to broader theories of distributive justice.","PeriodicalId":170689,"journal":{"name":"Principles, Procedure, and Justice","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123443371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How Judges Decide","authors":"R. Sharpe","doi":"10.1093/oso/9780198850410.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198850410.003.0005","url":null,"abstract":"This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.","PeriodicalId":170689,"journal":{"name":"Principles, Procedure, and Justice","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120944434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}