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 would read his works. It seems to fit the purpose of the course, if I have understood it correctly, to debunk today "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.

***I have never heard about or read Rodell's works until seeing your essay, but upon skimming Woe Unto You, Lawyers, it seems that Rodell makes blanket statements about lawyers in general and does not make concessions for the value of a law degree. To the contrary, Eben makes it clear that you CAN use your law degree for good should you choose to by refusing to acquiesce to the established structure. It is unclear to me whether Rodell would reach the same conclusion, but correct me if I'm wrong.

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 explains his rationale. 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, which influence the society and its everyday occurrences, yet it is approached and taught in an extremely impractical way. In classes, we would read a case, find the holding, discuss its rationale, and apply it to the next case. The law is taught as if though a solely theoretical endeavor. 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. With one academic year under my belt, all I have learned is that the law is full of contradictions. For some, reading the cases might satisfy their naïve optimism or infuriate their idealistic bubble. It only leaves me more confused about the law than I was ten months ago. I cannot reconcile with my belief that there is and cannot be a one-size-fits-all solution. Liberties are considered alongside the social climate to avoid backlashes, and as Jerome Frank once quipped, "some judicial decisions are made based on the presiding judge's breakfast."

Yet, the more I dwell on this confusion, the more I believe that 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.

***It seems as though you are confounding flexibility with contradictions. To me, those are two very different ideas. It would follow that if the law were so flexible, it could avoid contradictions. Are you trying to say that flexibility is a double-edged sword that leads to contradictions in the wrong hands. Furthermore, It seems that your conclusion is that the law's flexibility can allow it to address social issues and achieve a more fair and balanced result is at odds with Rodell's thesis in Woe. He appears to be arguing the very opposite, denigrating blind adherence to legal doctrine. I'm not sure how to reconcile the two. Are you disagreeing with Rodell on this??

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. People are shaped by their social surroundings, but it is also 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. Everyone's purpose is different. I have yet to ascertain what mine is. 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." 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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