Two Problems for Legal Realists

True, although these sciences still hold their hypotheses up to experience. A paleontological theory makes implicit predictions about the possibilities for future discoveries and should be abandoned if those predictions cannot by reconciled with a new discovery. A law can be overruled or expanded, but this represents a choice on the part of the judge. Maybe her decision is motivated by new social conditions, but I'm not sure that means it's correct to say the law was irreconcilable with those conditions. It was simply not preferable.

The problem for legal realists, which is the subject of this paper, is that a decision's "rightness" or "wrongness" is purely a question of values, and values cannot be experienced in the same way as a table or lamp.

I don't know that I follow you here. Precedent may offer guidelines for interpretation or application, but these guidelines are not determinative. This is the thrust of the rule-skeptical argument against the formalist belief that prior decisions uniquely or completely determine legal outcomes. Moreover, I'm not sure how many people in my audience (i.e., the class) are going to bring up partially-recursive data. I thought this was an effective sentence.

Sure. Is that a problem?

Point taken. But obviously there is some material difference in outcomes. Otherwise, why would Holmes or anyone else emphasize social policy analysis over precedent? However, if you want to argue that respect for precedent is in itself a political decision, then you are correct, but it seems you are being overly broad. Sure, a respect for precedent is a political commitment, but isn't it a political commitment in a different way than a decision, occasioned by the facts of a particular case, which aims to achieve specific social goals relative to that case?

The epistemological problem pertains to the treatment of one's values as simple matters of fact. I think we may disagree fundamentally here about how well we are able to know ourselves, and I don't presume to persuade you. But I wonder if I have done a capable job presenting my thoughts to other members of my audience.

Bushwah. If this means something sensible, you should be able to use two other sentences to render that meaning clearly.

A legal realist judge applies the law just as blindly as a formalist judge where neither grasps their underlying motivations. What supports the realists' presumption of honesty?

Good point above, but this feels like nit-picking. The authors we've read are advocating for a change in the way the law is done. I don't think "project" is that far off, and it has political undertones, which I thought fitting.

The capital investment made by large firms pursuing the “science of values” may give weight to this concern, as might the erosion of due process defenses to politically popular law enforcement and national security strategies. At the very least, it seems a fair question to ask whether the law, reduced to politics by another name, will offer greater or lesser protection to minority interests.

These comments reflect our earlier disagreement about whether formalist decisions are political in the same way that realist decisions are. I'm simply trying to show in this paper that the poor may be victims of the success of realist objections to formalism. Where one starts from the premise that Judge X would come to the same holding via formalism or realism--with the latter approach differing only in its supposed honesty--then the issues I attempt to raise become moot. The better questions in that case concern the collateral effects of honesty versus ceremony--and this seems to be your interest. But I don't believe the decisions would be the same in either case, so I raise the issues I do in this paper.