Legal Realism

[_Res Ipsa]

Ajax asked:

Res Ipsa would you say you are more or less of a legal realist since becoming a lawyer. This isn't a knock on your profession but I found the BS element so thick in legal textbooks that my mind just rejected it and I could scarcely listen to it. It's impossible to predict or understand without knowing the politics. Election results determine right and wrong in so many ways. History is written by the victors.

I’ve been out of law school for over 40 years, so when you refer to legal textbooks, I’m not sure what you mean. Most of my legal textbooks were really casebooks — pages after page after page of court opinions with comparatively little explanatory text. The primary method of teaching, especially in the core subjects, was the Socratic based case method. But that was in flux, so for some of the courses — especially 2nd and 3rd year electives — used textbooks that looked more like those you’d find in an undergraduate university course. I haven’t paid much attention to legal education since graduating, so I have no idea what legal textbooks look like these days.

The original legal realists were in the 1920s and ‘30s. They were a reaction to legal formalism. Legal formalism was the notion that judges decide cases by using deduction from “the law” — a set of general legal principles. Done properly, deduction from those legal principles would lead the judge to the only “correct” decision. It was a view of law as an objective process of deductive reasoning in which “the law” dictated the result in any given case.

Even today, legal philosophers don’t agree on what legal realism really was because the legal realists didn’t get together and create a manifesto. Legal realism has to be distilled from the writings of a number of individuals who disagreed on all sorts of issues. But the common thread that runs through all of them looks something like this:

1. Legal principles are indeterminate — the correct result in a specific case can’t be objectively deduced from general principles. Therefore “the law” as conceived by formalism doesn’t exist.

2. Judges decide the result of cases for reasons other than the application of general principles. Regardless of what those reasons are, “the law” is simply what judges decide.

3. The way that judges decide cases should be discovered empirically using the scientific method as applied in the social sciences.

4. Understanding how and why judges decide individual cases the way they do will allow us to predict how a specific judge will decide a specific case.

When I went to school, legal realism was part of legal history. The hot theories of law that I recall at the time were Law and Economics (Chicago School), Rights Discourse (including natural rights), and Critical Legal Studies (Harvard and a couple other law schools.)

At that point, it was common for law professors and legal scholars to say that “we’re all legal realists now.” But that was only in the sense that point one was generally acknowledged. The indeterminacy argument is a good one, and I completely agree with it. I also completely agree with point number 2. I think judges decide how a specific case should be decided and then use what we call legal reasoning to rationalize the decision.

I think number 3 might be a good idea, but the results so far are fairly depressing. One of my favorite studies was of a parole board. They’d decide on a bunch of parole applications every day. The board members could give specific, reasoned explanations for each decision. The researchers looked at all kinds of variables to see which, if any, could predict whether the inmate was granted parole. The variable with the highest predictive value was the number of minutes between the hearing of an individual application and the last time the board members had eaten.

The original realists were fairly focused on politics or policy as the basis for judicial making. I thought of both Law and Economics and Rights Discourse as neo-formalism: attempting to replace the general legal principles in formalism with either the market or some system of rights that would restore at least a veneer of objectivity to legal reasoning. But, in my opinion, legal realism types them apart in the same manner it did to legal formalism.

So, to a large degree, I accepted important pieces of legal realism during law school, and decades of legal practice hasn’t really changed that.

Where I depart from the realists is their claim of predictability based on policy or politics. I think their point number 1 applies there as well. I think their indeterminacy argument destroys their predictability argument. That aligns me more with one branch of Critical Legal Studies. (Which I view as a many headed beast). I took Contracts from Gerald Frug, and his law review article The City As A Legal Concept best describes how I think about law.

So, I think I would agree with you on a couple of points on what judges do and don’t do. What you describe as BS sounds to me like theories that try to portray how judges decide cases as some sort of objective process based on some coherent collection of general principles. If I’m right, I agree that’s BS. You seem to plug politics in as the explanation, but I would say that’s indeterminate as well.

I think I’d also disagree with the conclusions I think you draw. From my perspective, you focus on the is while leaving out the ought. I think it’s important to understand how the system is working, but how it ought to work is far more important.

See, told you. Long and convoluted. And quite possibly incoherent.

[_ajax18]

So, I think I would agree with you on a couple of points on what judges do and don’t do. What you describe as ____ sounds to me like theories that try to portray how judges decide cases as some sort of objective process based on some coherent collection of general principles. If I’m right, I agree that’s BS.

You're right, and thanks for creating this thread.

You seem to plug politics in as the explanation, but I would say that’s indeterminate as well.

Now that I think about it, I think you're right about this as well. I suppose John Roberts didn't always vote along the party line.

But in the real world, do you use legal realism to make predictions on what a particular judge will do once you get to know who he is and what his biases are, or do you actually use case law and precedents you dig up on Nexus/Lexus to decide whether you have a case worth pursuing or not? Or is it just once you decide if you have a case, then you start digging in Lexus/Nexus.

[_Res Ipsa]

Good question. The answer is yes, but practicing trial lawyers wouldn’t think about It that way or even use the term. We’re all realists now, in that we understand that having existing case law on your side is often not enough to win. So, trial lawyers try to learn about the judge and her biases, tendencies, likes, dislikes, past rulings on similar issues. It’s important to try and make the judge or jury want to rule in your favor for whatever reasons they feel are important.

At the same time, one of the weaknesses of legal realism is that it ignores the fact that judges do feel constrained by the Constitution, laws, regulations, and prior case law. So, it’s fine and dandy for you and me to say that judges make decisions for reasons other than the law, but the judge doesn’t experience his decision making process as being able to do whatever he wants for any reason. So, you have to make the judge want to rule in your favor for non-legal reasons and you have to give her a legal framework that she can comfortably use to support her decision.

There is a saying that hard cases make bad law. That’s because, when a judge really wants to decide a case one way based on the facts but the law doesn’t really support that position, what tends to give way is the law. That is particularly true with appellate courts. I’ve always winced when I’ve heard lawyers argue to judges “But your honor, you can’t do that.” Because I know that the judge is thinking “hold my beer.”

So it’s a mixture. Often, when a case is new, you don’t know who your judge will be. So you have to think about “can I get a judge or jury to want to rule in my clients favor?” and is the case supported by existing law, reasonable extension of existing law, or good-faith argument for changing prior case law. (I think in most states now, if that second part isn’t true, the lawyer is subject to monetary sanctions.) Then you tell the client what you think, and the client decide what he wants to do. (And you decide whether you want to take the case.) As the case develops and gets closer to trial, you have to constantly reassess your opinion of the likely outcome.

FYI: I’m not a trial lawyer, but I have litigated cases and worked closely with trial lawyers for most of my career. I’ve read more pre-trial reports than any human being should have to.

[_honorentheos]

Long and convoluted. And quite possibly incoherent.

Whatever else it is, I found it interesting. Thanks!

[_Gadianton]

hey Res, I sent you a PM, did you get it?