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| | Forgetting Realism |
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< | -- By JoshuaDivine - 16 Feb 2012 |
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> | 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. |
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< | 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, he 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). |
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> | 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. |
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< | 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 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 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. |
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> | 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. |
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< | 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. |
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> | 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. |
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< | 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 vigorousy debate the meaning of words like “resonable” that are almost entirely self-referential. |
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> | 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? |
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< | 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. |
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> | 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. |
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< | 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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> | 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. |
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< | This draft strikes me,
Joshua, as well-written and capably-presented version of the thinking
that got you to the question the essay should be about. The route to
improvement is to remove the figure lines, and paint over the
cartoon. If realism is the way we learn the law, as Holmes
suggested in 1897 and you find law school pretty much agreeing with
in 2012, why isn't it the way we do the law? Jerome Frank tried to
answer the question in 1927, and the result was _Law and the Modern
Mind,_ possibly the most vilified work of legal inquiry in American
history, which I think you haven't read. Morton Horwitz gives an
historical account of the process, the move towards and away from
realism in 20th century law-thought, in the second volume of _The
Transformation of American Law_, which you might find relevant.
While I don't think you're going to find yourself in possession of a
single idea that answers to all the facets of the question in 1,000
words, I think the effort you want to make is after the final
pot-hook in the present draft, not before. |
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> | 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. |
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> | 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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