Popular Myths About the Legal Realists

Brian Tamanaha

On several recent occasions I have heard youngish (35-45 years old) law professors say something to this effect: “I’m too much of a Realist to believe that judges' decisions are determined by the law.” Although there is no poll to confirm it, many younger law professors appear to see the Legal Realists as sort of proto- or early day Crits (members of Critical Legal Studies) who exposed the rampant indeterminacy of law and insisted that judging is inevitably infused with and shaped by the subjective views of judges.

The following passage by prominent constitutional law scholar Erwin Chemerinsky (on why ideology must be taken into consideration in lower court judicial appointments) exudes this perception of the Realists:

Some suggest that using ideology [in appointments] is undesirable because it will encourage judges to base their rulings on ideology. The argument is that ideology has to be hidden from the process to limit the likelihood that once on the bench judges will base their decisions on ideology. This argument is based on numerous unsupportable assumptions: it assumes that it is possible for judges to decide cases apart from their views and ideology; it assumes that judges do not already often decide cases because of their views and ideology; it assumes that considering ideology in the selection process will increase this in deciding cases. All of these are simply false. Long ago, the Legal Realists exploded the myth of formalistic value-neutral judging. Having the judicial confirmation process recognize the demise of formalism won’t change a thing in how judges behave on the bench.

This appears to be a widely shared view of the Legal Realists, but is it correct?

A threshold difficulty in talking about “what the Realists believed” is that this label is applied to an amorphous group of people with disparate beliefs (William Twining, who has probably read more original work from this period than any person alive, has repeatedly made this point, especially in his “Talk About Realism”). So large has the myth about The Realists become, however, that this reminder falls on deaf ears.

No one would doubt that Karl Llewellyn was a Realist so it makes sense to consult his views. Llewellyn explicitly defined the Realist movement in a sharp exchange with Roscoe Pound. The main theme of Llewellyn’s defense is that few of the Realists actually held the objectionable views that Pound attributed to them, and that most of what they believed in had already been stated by Pound and others.

Here is Pound’s summary of their purported views of judging:

Another mode of approach to jurisprudence, often asserted to be the one path to reality, is psychological. Psychological exposure of the role of reason in human behavior, of the extent to which so-called reasons come after action as explanations rather than before action as determining factors, has made a profound impression upon the rising generation of jurists. It has led many of them to insist on the non-rational element in judicial action as reality and the rational as illusion. In contrast to the nineteenth century emphasis on certainty and uniformity and ignoring of the continual fallings short of those ideals, they emphasize the uncertainties, the lack of uniformity, and the influence of personal and subjective factors in particular cases.

Note that Pound’s characterization of the Realists is reminiscent of Chemerinsky’s.

Llewellyn canvassed the work of all the people who might be considered “Realists,” and he charted how many of them espoused the beliefs ascribed to them by Pound. In response to the above passage, Llewellyn wrote (restating Pound’s characterization at the head of each):

Point 5. Many of the realists insist that the rational element in law is an illusion:
(a) Supporting: Conceivably Frank: 1;
(b) Colorable: (i) Unrebutted: Green 1; (ii) Rebutted: 4;
(c) Negating 13;
(d) No evidence noted: 1.

….
Point 7. Many of the realists seek to ignore the traditional common-law technique “of application.”
Examination develops that no triable issue of fact, as distinct from opinion, is joined here, since the Dean apparently conceives the traditional techniques primarily as techniques of applying rules, whereas the realist would include all the traditional techniques of deciding cases, or of the lawyer’s art….

Point 8. Realists are blind to how far the administration of justice attains certainty through rule and form.
Again no triable issue of fact, as opposed to opinion, is joined. The canvass shows that our subjects are much concerned with how far justice obtains certainty, and with how far it is attained—or hindered—through rule and form. But they tend to differ with the Dean on the “how far” in both cases.

Llewellyn’s point was that the Realists were indeed critical of mechanistic accounts of judicial decision-making—as deductive and exclusively rule-focused—but they did not commit the opposite error of suggesting that judging is purely subjective and not legally constrained. Rather, the Realists brought attention to other stabilizing aspects of the craft of law and judicial decision-making besides just the legal rules. While they denied that law was certain to the extent that formalism portrayed, they agreed that there was a great deal of certainty and predictability in law (though not attributable to the legal rules alone). They also argued that in some cases policy decisions were called for and should be done openly by judges, although they recognized that many cases were routine and determined by the legal rules.

Llewellyn’s final book, The Common Law Tradition (1960), was devoted to responding to what he thought were exaggerated fears about the uncertainty of appellate decisions. He detailed 14 factors that constrain judicial decisions; here are the first three: 1) Law-conditioned Officials; 2) Legal Doctrine; and 3) Known Doctrinal Techniques...

A few commentators have asserted that this book reflects Llewellyn’s late change of heart. Perhaps, but another way to see it is that the early orientation of the Realists was on correcting the extremes of legal formalism, whereas Llewellyn’s later work tried to correct extremism in the opposite direction (which is consistent with Llewellyn’s response to Pound’s attack). Llewellyn asserted in The Bramble Bush that “while it is possible to build a number of different logical ladders up out of the same cases and down again to the same dispute, there are not so many that can be built defensibly.”

For the above reasons, it seems a mischaracterization to suggest that the Realists thought it was impossible “for judges to decide apart from their views and ideology.” Their insistence that these views come into play in certain contexts—rebutting the formalistic portrayal that they never come into play—did not mean they always (or even often) come into play. Their insistence that a narrow focus on legal rules alone cannot fully explain judicial decisions—expanding the focus to the craft of lawyering, the institutional setting of judging, the socialization of lawyers and judges into the legal tradition—does not mean that the ideological views of judges determines their decisions. Chemerinsky is right that the Realists exploded the myths of formalism, but it does not follow from this that they believed that judging is pervasively ideological or subjective. And most of the Realists were not rule skeptics in any deep sense (as Twining makes clear).

There is a fundamental reason why is wrong to see the Realists as early day Crits: the Realists believed in the law (keeping in mind that this was an amorphous and disparate group). Their goal was to improve the law. Llewellyn professed his love for the law and his pride in being a lawyer. One could hardly be more un-Critly (to coin an ugly neologism) than that. No Crit would have drafted the Uniform Commercial Code to match business practices—which Llewellyn did with great satisfaction. Moreover, while several Realists were New Dealers, their overarching emphasis on enhancing the efficiency of law and on making the law conform more closely to ongoing social behavior had a deeply conservative thrust—again, most un-Critly.

The Crits themselves were well aware that the Realists did not see the law in the same way, and several criticized the Realists for stopping short (see Horwitz, Transformation II). But this recognition appears to have faded for some in the generation of law professors that intellectually came of age after the heyday of Critical Legal Studies.

Why does any of this matter today? It is regularly said that “We are all Realists now”—and in many respects this is true. The Realists have achieved a kind of iconic (though ambiguous) status. It carries weight to say “The Realists showed us that…”

For these reasons, and because I think the Realists got a lot right, it is important to get the Realists right.
Posted 11:58 AM by Brian Tamanaha [link]