Keeping It Real, the Strom Thurmond Way

Frum follow-up post pending. In the meantime, don't miss this great Richard Posner anecdote in Brian Leiter's post on legal realism.

[Posner] recounted the story of his own confirmation hearing, at which Senator Thurmond asked him the obligatory question, "If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?" to which Posner - being more intellectually honest, and less cowardly, than most - replied, "Well, Senator, it's a bit more complicated than that," and then proceeded in to a lengthy explanation of the necessity of judicial law-making, the ambiguity of the kinds of cases that require appellate review, and so on.

When Posner a few weeks later got the transcripts of his confirmation hearing, the exchange appeared as follows:

"Thurmond: If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?

Posner: Yes."

I should now say something wise - but brief - about legal realism. It is a true and important doctrine. The Curmudgeonly Clerk irks Leiter by designating it baby-stuff: "we do not need the assistance of law professors to perceive the obvious." This slight elides the vast distance between the question whether the doctrine is true - yes, yes, only mooncalves don't know; and how it is true - i.e. what extra-legal considerations weigh in judicial decision-making, to what extent, in what dynamical fashions, so on and so forth. It seems terribly obvious to me that there must be a whole host of non-obvious answers to a truly vast array of questions about how legal realism is true: surprising facts, non-obvious generalizations, shrewd insights and observations, nasty sausage-recipes. And crazy stories about crazy politicians. To deny the possibility of studying (and teaching) all this by brushing it off as 'obvious' seems to me a misguided reaction to what are probably regarded as sordid, regrettable truths.

I suppose the thought might be: if realism true, it will take care of itself - e.g. Republican and Democratic law students will go forth to bend the law to their private wills, in subtle and not so subtle ways. But that would not be a reason not to study the truth, and certainly not a reason to suppose it would be be trivially simple to study. (We all do lots of things on auto-pilot - breathing, for example. But how we do these things is often exceedingly interesting.)

It seems to me the position the Clerk advocates - a normative goal of maximal partisan dagger-sheathing, I take it - is consistent with robust (highly non-trivial) legal realism, even with robust teaching of robust legal realism. You could (hypothetically) have a legal culture in which judges were strongly and officially admonished to make it impossible for observers to discern their politics from a study of their decisions. So you don't try to confuse the poor things by telling them - or anyone - the noble lie that realism isn't true. You just tell them it is a judge's job to make it impossible for anyone to tell which party he or she belongs to. This is not a goal you could realistically attain. But a norm of conscious concealment is one at which you could realistically aim in a variety of ways (some of them quite artificial, even schizophrenic, but if that's what you want ...) If judges tended to be ashamed to be perceived as discernably partisan, because this made them look sloppy and unprofessional in the eyes of peers and colleagues, this would not result in 'pure, formal law'. What we would have would be eminently 'real' determining factors, i.e. lots of partisans taking assiduous care to step down hard on their own impulses. These would of course still leak out around the edges, and probably elsewhere, and whenever push came to shove. It might be a very odd sort of legal culture. I'm not sure what advantages it would have; but there would be fewer partisan daggers drawn, which I think would tend to be a good thing. There would be nothing unstable about this arrangement - not necessarily, anyway. (Think about the pride US military brass take in being above partisanship - at least until they retire and run for President. Not so easy for judges, by any means, but ... well, if you really don't want people to be able to tell whether you are a Democrat or a Republican, you can find a way to keep it under your robe to a far greater extent than is currently the case in our legal system.)

Of course it's quite difficult to imagine how to get to this funny legal world from where we are, even if we all decided we wanted to emigrate there. But it is important to see that descriptive legal realism is consistent with a tremendous variety of normative views, including (so far as I can discern) the Clerk's.

Perhaps there is some tendency to suppose that teaching or espousing legal realism exacerbates partisanship, by consciously drawing people's attention to the possibility of indulging in it. Then you get in some hideous feedback loop. So there is no reason for professors to encourage this undesirable dynamic by preaching it. But it would be just as easy to draw people's attention to the truth of realism, then sternly admonish them about their solemn duty to damp down expressions of partisanship to the extent that it proves possible. Judges could ber encouraged to pick some full-bodied, not obviously flagrantly partisan legal philosophy and really stick to it through thick and thin. Or they could arbitrarily tick from left to right like metronomes. Whatever. These may seem like silly suggestions. But it seems to me that the noble lie that legal realism isn't true - in fascinating, complex ways - is also quite silly. So there we are.

But I don't know about this stuff. I've never given it an hour's thought before this very night, so go ahead and tell me I'm wrong.

Comments

[baa]

I'm another legal theory novice. But it seems all reasonable people affirm (or ought to affirm) legal realism defined as following: in cases when legal reasons underdetermine the result, non-legal reasons can and should determine the result.

This hits the hat trick. It's descriptively accurate (judges behave that way), normatively true, (they ought to behave this way), and totally trivial.

It's also, I take it, the point of Posner's comment to Thurmond. In some cases *every* judge will be making law instead of following the rules set down. Namely, when the rules set down underdetermine the result.

It seems impossible that the position described above can be the point of contention between legal realists and their opponents. No one could be so dumb as to object, right?

Is it not more likely that battle arises over how we know *when* legal reasons undetermine the result? A realism that suggests legal reasons run out faster when the case is of political prominance, or when it involves with cherished normative principles would be open to more substantive attack (it would also be a more *threatening* theory for formalists). Again, I don't know, I'm not a legal scholar, but I would imagine most formalists are directing critques against this kind of realism.

[Grant]

I don't think you quite understand legal realism. It goes much deeper than "all law is politics" in partisan sense of the word. While this may be an effect of its conclusions, legal realism is about politics in the grand sense of the word. Legal realism didn't pay much attention to your vulgar point that judges make decisions on more than legal doctrine. This distinction between judges acting as judges and judges acting as legislators implies that it is possible for judges to act as judges. In other words, the legal realists effectively deconstructed any distinction between law and politics: there is no private/public, act/ommission, right/entitlement distinction. Hale and Cohen demonstrated that in many judicial decisions there is never a choice between objectivity and subjectivity, law and politics, nonfeasance and misfeasance. The reigning jurisprudence of the time, formalism, simply died out when this critique was set forth. From the legal realists came law and economics, critical race theory and CLS. While contemporary rights theorists do presently exist, they lack the analytical rigor of the other jurisprudential schools. I'm tired of hearing people trivialize the arguments of the legal realists. Understand it before you turn it into some banal motto for objectivity.

best,

Grant.

[jholbo]

Grant,

I fully admit to not understanding the doctrinal intricacies of legal realism, to which I now add the failure to understand how I can have managed their inadvertent trivialization. Practically my only thesis in the post is that the interplay between legal and extra-legal factors is surely complex and worthy of study, i.e. non-trivial. Obvious? Seems to me. Banal? Not sure why. (Are all obvious truths banal? If so, I don't mind the occasional banality when I am laying out my premises.)

I am surprised you say that legal realism goes much deeper than "all law is politics"; and that it entails the complete deconstruction of the distinctions you name. My distinct impression was that, strictly, it did not go nearly so far. (And rightly so, in my opinion.)

In any case, surely legal realism is not about politics in the grand sense of the word. I am not sure which grand sense you have in mind. But they are all normative senses. And legal realism is a descriptive doctrine.

[Grant]

Jholbo, thanks for the response. Sorry if I got a bit strident. Anyhow, I'd strongly disagree with your contention that legal realism is descriptive. Holmes may have pretended to "let the legislature do as they wish" but Cohen, Hale, et al used their deconstructions to further the New Deal. While the Crits (CLS) can be seen as an extremist version of the legal realists, their (the Crits) doctrinal premises are no different from the legal realists'. They both believe that indeterminacy is the norm, that the private/public distinction is a sham, and that all judicial decisions are inherently political (meaning all judicial decisions have not just de facto but de jure distributive consequences). If you don't believe me, go look up "Transcendental Nonsense" by Felix Cohen in the Cornell Law Review. Many people wonder what, in fact, differences legal realism has from CLS. I think that the doctrine is the same but the attitudes are a bit different. The legal realists were progressives (maybe except for Holmes) but they had little concern for ethnic oppression. The Crits tend to use a bit more European philosophy (even though the legal realists employ it throughout their writings) and are more concerned with the conditions of African-Americans. The Crits tend to be skeptical of meta-narratives, such as social science, while the realists believed that social science could reconstruct the law. I think most jurists would disagree with your contention that legal realism isn't about politics in the larger sense of the word. Their "grand" project was so powerful that both law and economics (a generally right-wing movement) and CLS/Critical race theory/feminist jurisprudence (generally leftist movements) grew out of it. It is simply beyond any partisan issues.

[Grant]

One last thing, I'm not sure what you mean by "descriptive" legal realism and "normative" leagl realism? Let me know if I misread you in my last post. From what I can tell, you think that the descriptive part of legal realism is distinct from its normative edge. You are right that legal realism can lead to sundry normative positions, but why is the descriptive aspect of legal realism not normative in of itself? Legal realism is about getting rid of effete dichotomies, what Cohen calls "transcendental nonsense." It is odd to then use a rather effete binary to explain legal realism. Holmes, the grandaddy of legal realism, thought that the descriptive part of legal realism was its only normative stance. He was an odd character, a raw utilitarian, a social-Darwinian and sometimes Nietzschean. Holmes did comment on what legislatures should do, but he focused mostly on the inadequacies of the black-letter law, read "The Common Law" if you want an example of this.

[Brian Leiter]

John,

Grant's posts about legal realism are almost entirely inaccurate. Please see my Blackwell essay, linked from my site, for more on realism, as well as debunking some of the myths Grant here circulates. Among other things, Morris Cohen was primarily a critic of legal realism, and Hale was a marginal figure, not even a lawyer. This is the CLS version of realism, which hasn't a lot to do with the original item.

Brian

[Grant]

Understanding that time constraints limit any of us from writing complete responses, I still fail to see any major differences between my description of legal realism and Leiter's description of it in his essay. In fact, his final critique of the unjustified normative implications of CLS's private/public deconstruction gells with my contention that legal realism's indeterminacy critique (in both the rational and causal sense) led to law and economics (which normatively supports the maintenance of a private sphere). I understand that Morris Cohen eventually turned into a critic of legal realism (along with many original supporters of legal realism), but I wasn't referring to him. I was referring to the other Cohen (Felix), who argued in "Transcendental Nonsense" that the private/public distinction was simply a matter of baselines (read 35 Colum L.Rev. 809 at 816). While Leiter is correct in stating that Morris Cohen makes a similar point (he makes the point in "Property and Sovereignty,"), he doesn't consider Morris Cohen to be a genuine legal realist, hence, the argument isn't a genuine part of legal realism. This would make sense, but Leiter also concedes in his essay that Felix Cohen was a major figure in legal realism (when Leiter mentions how Hart overlooks Cohen's conceptual rule sceptcism). I agree that CLS overstates the indeterminacy critique. Most Crits lost their status because of their overstatement, especially in the rights critique (read Tushnett, An Essay on Rights, for an example). MacKinnon has some funny line about indeterminacy as driving into a brick wall at 60 with a loose steering wheel (Robin West has a similar problem with the CLS overstatement). Yet, I think it is wrong to characterize CLS as an ivory tower movement. Robert Gordon's fabulous essay on "Unfreezing Legal Reality: Critical Legal Approaches to Law" is written for lawyers and judges, and Boyle's essay for law students on "First-Year Mystification and Legal Argument" is equally "real-world" and lawyerly. Moreover, many Crits, such as Gary Peller, have much experience with litigation. In general, I see CLS as a sometimes (with emphasis) genuine extension of legal realism and not as a bastardized/fraudulent extension of it.