Law in Contemporary Society
Forgetting Realism

I spent some time studying Holmes and Frank in college and entered this first year with realist thought in the back of my mind. I was anxious to see how successfully the modern discipline of law was able to view itself not just as a logic system, but a social institution. At first, I was pleasantly surprised by the degree to which realist thinking was evident in many of our first year courses. My contracts class proceeded almost entirely on the idea that a contract was a choice between a penalty and a performance. My property professor rarely engaged the meaningless formalist distinctions of old common law property cases. 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 black letter law.

With this sort of observation in mind, I quickly concluded that legal academia had finally moved beyond the formalism that had so frustrated the old realists. But as the first semester wore on I found myself less and less interested in my courses. I spent 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 judges say it is; law is a grounded, social discipline, not an abstract science of eternal logic. This is the half I remember well 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 formalist 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 vigorously debate the meaning of words like “reasonable” 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 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 to 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?

If there’s a simple answer to this question (and there isn’t), it lies in the hearts, not the minds, of lawyers. And it lies in the American legal community’s ongoing dishonesty concerning its own nature. I believe, that is, that a full-throated application of realist principles is emotional anathema to the average lawyer. Most members of the legal community are smart enough to recognize law as a social institution, but most members of the legal community don’t want to be social scientists.

We have to think about the individuals who choose to embark on legal careers in the context of the farcical image that the legal community presents to the public. The discipline of law, while internally cognizant of its deeply contextual sociality, hesitates to admit the relativity of legal thought to the non-legal world. This hesitation, whether born from cowardice or arrogance, helps define the set of individuals who become professionally interested in law. We can expect law’s public image to attract lawyers who prefer reasoning in logically positivist closed systems, individuals who shy away from the uncertainties of social systems and toward the comforting certainty of highly abstracted reasoning. Concurrently, we can expect the popular image of law to dissuade individuals with a more pragmatic conception of truth.

As these generations of prospective lawyers become generations of legal thinkers, their cognitive tendencies become embedded in the discipline. Today, the empirical case for a realist conception of the law is hard to deny. But no empirical case can easily alter the personalities of the individuals who receive it. We are left with an awkward mutant of a discipline, intellectually aware of law’s social nature but emotionally unwilling to embrace it.

Honesty, it seems, is the only solution. The legal community long ago admitted realism to itself; it needs to admit realism to the world.


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r7 - 22 Jan 2013 - 20:10:34 - IanSullivan
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