A theory of legal strategy

By the conventional view case outcomes are largely the product of courts' a pplication of law to facts. Even when courts do not generate outcomes in th is manner, prevailing legal theory casts them as the arbiters of those outc omes. In a competing "strategic" view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view bett er explains the process, no theory has yet been propounded as to how lawyer s can replace judges as arbiters. This article propounds such a theory. It classifies legal strategies into three types: those that require willing ac ceptance by judges, those that constrain the actions of judges, and those t hat entirely deprive judges of control. Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes ape almost wholly indetermi nate and strategists infuse meaning into these empty rules in the process o f argumentation. Such meaning derives from social norms, patterns of outcom es, local practices and understandings, informal rules of factual inference , systems imperatives, community expectations, and so-called "public polici es." Constraint strategies operate through case selection, record-making, l egal planning, or media pressure. Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing t hem to be decided on issues other than the merits. The theory presented exp lains how superior lawyering can determine outcomes, why local legal cultur es exist, how resources confer advantages in litigation, and one of the mea ns by which law evolves.