Fred Rodell's Legal Realism

-- By ChihIFang - 17 Apr 2010

Introduction

Felix Cohen, Jerome Frank, and Thurman Arnold – all representatives of American legal realism movement. Fred Rodell is another. At various points of this course, I wondered when, or if ever, we will read Rodell’s works. It seems to fit the purpose of the course, if I have understood it correctly, to debunk today’s legal profession’s institutional structure. Moreover, Rodell believed that the primary goal of legal education is to help future lawyers to use their minds and the purpose of legal writing is to explain and persuade in simple, non-bullshit terms – both of which run parallel to the aims of Eben’s class.

But we did not read Rodell’s works, so I read them on my own (it was more interesting than covenants and mens rea anyways). Rodell did not publish much in the first place. His essay “Goodbye to Law Review” succinctly and humorously answered why. He referred to legal scholarship as “qualitatively moribund while quantitatively mushroom-like.” I was attracted to Rodell’s writing because somewhere along my 1L year I have lost sight of what the law is. This essay explores three themes I took away from Rodell’s writings and their influences on me.

The Fundamental Hypocrisy of the Law

Rodell’s book Woe Unto You, Lawyers! pointed out the fundamental hypocrisy of the law - the law deals with very practical matters, matters that influence the society and its everyday occurrences, yet it is approached and taught in an extremely impractical way. In classrooms, we read a case, find the holding, discuss its rationale, and apply it to the next case. The law is taught as if it is theoretical. In opinions, decisions are made buttressed by precedents that have wildly different implications. The law is applied as if it was a one-size-fits-all t-shirt. The effect this hypocrisy has on law students is obvious, as can be demonstrated through my own experience.

I entered law school with no legal background. And today if one were to ask me what the law is, I would say its full of contradictions. For some reading the cases might satisfy their naïve optimism or infuriate their idealistic bubble, for me it just leaves me more confused about the law than I was ten months ago. There is no one-size-fits-all. Liberties are considered alongside the social climate to avoid backlashes, and as Jerome Frank stated, some judicial decisions are made based on the presiding judge’s breakfast.

Yet the more I dwell on this confusion, the more I believe, for me, the contradictions might be the most attractive component of the law. No matter how formalistic the opinions are written or to what degree they are following the doctrine of stare decisis, the law is flexible because it is intimately connected with concurrent practical considerations. Rodell, as a legal realist, saw the law as a tool to serve social purposes and to balance competing societal interests. I believe that is achievable, precisely because the law is flexible.

The Only Excuse for Law’s Existence

Rodell wrote that the only excuse for the law’s existence is its role as the “only alternative to force as a mean of solving the myriad problems of the world.” Because the law is flexible and can contour to the practical needs of the society, lawyers are empowered to use legal assets to respond to emerging and existing problems. Accordingly he believed that legal education ought to teach one how to think for oneself and for the society at large.

In regards to thinking for oneself, I associate it with Eben’s idea of the internal contradiction of our social conditions. As humans we are shaped by our social surroundings, but at the same time it is essential to have awareness and consciousness of our actions in order to work towards our purpose and pursuit of happiness.

In regards to thinking for society at large, it should derive from our purpose itself. Everyone’s purpose is different. I personally have not figured mine out. But for the purpose to be meaningful and to be in pursuit of individual happiness, it ought to be one that serves the society rather than individual gains.

Pursuance of Happiness Rather Than Tangible Rewards

The legal institution and its representative members did not embrace Rodell’s personal philosophy (after all he did refer to the law as “a fat man walking down the street in a high hat”) but he was loved by his students. In a dedication to Rodell’s life, his student Charles Allan Wright described Rodell as someone who was “more interested in pursuing happiness than tangible rewards.” That, I think, sums up where our legal education should guide us.

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