The relevance of empirical findings on voting patterns for the analysis of dworkin’s criticism of legal positivism

Abstract

The article uses the literature on empirical findings on panel effects and dissent aversion in order to criticize Dworkin’s conception of legal interpretation and to support Kelsen’s theory of the legal frame and his assertion that legal interpretation consists of an act of cognition and an act of will. Dworkin’s view of discretion as usually absent from the practice of legal interpretation is confronted through the presentation and analysis of research on dissent aversion and panel effects that indicate the pervasive influence of non-legal aspects in the interpretative patterns shown by circuit court judges. The identified interpretative patterns are also referred to in order to support Kelsen’s conception of legal interpretation as involving both the identification of a legal frame and a subsequent act of will that consists of the selection that is not cognitively based of one of the available options.