Forgetting Realism

-- By JoshuaDivine - 16 Feb 2012

My pre-law advisor in college was well known for trying to convince each student who came to him not to go law school. He had attended an elite law school for a year in his youth but quit after finishing his first year. By his own telling it was not the well known stresses of law school that compelled his departure. Rather, he found law school intellectually bankrupt. He was unable to tolerate what he described as a willful ignorance of how the judiciary actually functions. Instead, became a political scientist and a professional student not of the law, but of the courts. Naturally, his course readings were filled with realist accounts of judicial behavior (including the Holmes and Frank readings we have examined so far).

After disregarding his advice and heading to law school, I entered this first year with Holmes in the back of my mind. I was anxious to observe what my old professor had found so profoundly frustrating. At first, I was pleasantly surprised by the degree to which realist thinking evident in many of our first year courses. My contracts class proceeded almost entirely on the idea that a contact was a choice between a penalty and a performance. My property professor rarely engaged the meaningless formalist distinctions of old common law property case. Instead, he sarcastically kept track of “judge tricks,” techniques for creating a veil of logic around the simple imposition of a policy preference. This semester in torts, we spend ten minutes on the economic theory of torts for ever one spent directly on cases.

With this sort of observation in mind, I quickly concluded that legal academia had finally moved beyond the formalism that had so frustrated my old advisor. But as the first semester wore on I found myself less and less interested in my courses. I spent a lot of time over Christmas break confused by own disinterest. “Law school is doing everything right,” I thought, “so why can’t I just pay attention?” And so my re-reading of Holmes and Frank early this semester was eerily well timed. As we discussed them in class I realized that I had forgotten an entire half of the core realist claim.

I conceive of the first half as the basic, positive claim: law is what judge’s say it is; law is a grounded, social discipline, not an abstract science of eternal logic. This is the half I remember from college, and I think it is the half that most of the legal community remembers. I suspect I would have trouble finding a colleague or professor anywhere in Columbia School who would deny the policy-making role of judges or the superficiality of much legal logic. But even as we acknowledge the truth of the realist claim, we consistently fail to spend any serious time considering its implications. We acknowledge that judicial decisions are a deeply incomplete method of predicting legal outcomes but teach law almost exclusively by reading judicial decisions. We all know that courts are politicized. Yet even in Constitutional Law we focus on the development of doctrine to the almost complete expense of the development of the Supreme Court itself. We vigorous debate the meaning of words like “resonable” that are almost entirely self-referential.

Having now re-read Holmes and Frank, I realize that they completely anticipated this failure to tease out implications. In fact, I think their anticipation of this failure should be viewed as the second half of the realist claim, the half that I along with most of legal community tend to forget. These writers spend as much time discussing the failure of the legal community to adopt a more realist approach as they do enunciating the approach itself. Their outline of a pragmatic approach to legal outcomes cannot and should not be separated from their analysis of why the legal community fails to take such an approach. Holmes and Frank, I suspect, were fairly confident that the descriptive value of their approach would ensure its eventual adoption. But they were concurrently unsure that an acknowledgement of the realist claim on its face could the break the grip of legal magic.

This second half was vital in coming to an understanding of my frustrations during the first semester. I am coming to believe that lawyers (from law students to attorneys to judges to professors) have a tendency vaguely acknowledge the basic premise of realist thought and then completely stop thinking about it. We understand (whether in the front or back of our minds) that something is amiss in legal thinking but hesitate to ask what exactly it is because we fear where that road might take us. We tend, I think toward willful ignorance. But why? How can so many smart, driven people be content with a system they believe (or at least suspect) is deeply flawed.

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