I've posted on SSRN a review essay that originally appeared in the Oxford Journal of Legal Studies discussing Neil Duxbury's 1995 book Patterns of American Jurisprudence (Oxford University Press). The book has a number of virtues, but it is also deeply confused, and sometimes clearly mistaken, on a number of central topics, especially related to American Legal Realism. I've been dismayed to notice an increasing number of law review articles that cite these errors as authoritative, and so I'm hoping that by putting this paper, which of course appeared in a British journal, into circulation via SSRN, I can counteract this unfortunate tendency.
Here's an excerpt from the essay:
Whereas Duxbury does attempt to define "formalism," he takes a rather less satisfactory approach to Realism. It "was more a mood than a movement" he says, adding a few lines later it is "more appropriate to describe it as an intellectual tendency" (69). The heart of this "mood" was opposition to formalism along both the dimensions detailed in the prior chapter. Even so, says, Duxbury, we must in the end "recognize the formalist elements in realist thought" itself (130)! All of this strikes me as unduly vague and even misleading, for reasons I shall explain momentarily. Whatever the faults in his account of Realism, however, Duxbury has performed a very useful service to intellectual history by locating themes from the "Realist" literature--broadly construed--in their wider intellectual context: in empirically-minded political science (95-97), in institutional economics (97-111), in behaviorist psychology (126-127), in Progressive political thought (114-119), in the type of materialist history associated with Charles Beard (113-114), and in Veblenesque sociology (99 ff.). Although others have noted some of these influences on Realism, Duxbury is the first to bring them all together and to paint a complete picture of the whole landscape of ideas in which Realism took root.
The difficulty with Duxbury's approach is that "negative" definitions of Realism fail to do justice to a considerable amount of agreement among Realists about what courts are doing. Indeed, Duxbury himself correctly notes later on that the Realists shared the "assumption...that judges--stimulated, primarily, by the facts before them rather than by the rules to which those facts might be fitted--work backwards, 'from a desirable conclusion to one or another of a stock of logical premises'" (123) (quoting Max Radin). But this descriptive thesis about what judges are really doing when they decide cases surely constitutes a positive (as opposed to merely negative) thesis about adjudication: what I have called elsewhere "the Core Claim" of Realism.[1] The Realists then divide over the question of what it is that determines how judges respond to the facts: whether it is idiosyncratic facts about each judge's personality (as Jerome Frank believed) or whether it is far more common "sociological" facts about judges (e.g. their background, their professional socialization experiences, and the like) (as Karl Llewellyn, Felix Cohen, Underhill Moore, and the majority of the Realists held). Over time, our image of Legal Realism has suffered "Frankification," resulting in what Duxbury rightly calls "the popular burlesque" of Realism according to which judicial decisions are determined by "the moods and whims of the particular judge" (67-68). Unfortunately, Duxbury never clearly demarcates the Frankified burlesque of Realism from the mainstream of Legal Realism, which was far more influential.
Had Duxbury organized his discussion around this positive doctrine--the "Core Claim" shared by all the key Realists--he would have been able to tell a more principled story about the Realist interest in social science. Instead, he ends up claiming that "little effort was made by any of the so-called realists to explain, why, exactly, the integration of law with the broader social sciences should prove to be such an enlightened initiative" (130). This comment, however, betrays a fairly serious lack of understanding of what motivated the Realists.
Roughly, we may reconstruct the Realist line of thought this way. Starting from a pragmatic commitment to producing theories of law that would be useful to lawyers, the Realists recognize that a Langdellian legal science fails on that score: cases are not decided on the basis of purely "legal" rules and reasons, but rather on the basis of a court's "response" to the facts of the case. A lawyer who takes his cues from Langdell will not have a very good idea why courts do what they do; to figure out what courts are really up to, we must attend to the ways they respond to particular, recurring factual scenarios (to "situation-types"). These responses, happily, appear to fall into certain patterns (at least according to the "sociological" wing of Realism, noted above), sometimes reflecting the "norms" of the commercial culture in which a dispute had originally arisen,[2] sometimes reflecting shared fact-specific judgments about "fairness" or "socio-economic" utility in particular contexts.[3] A useful legal theory, then, ought to identify and describe these patterns, stating, as it were, the correlations between situation-types and judicial decisions. The social sciences then--conceived "positivistically" (that is, on the model of the natural sciences)--were the tool for performing this crucial task. By approaching law like a behaviorist psychologist, an anthropologist, or an empirical sociologist, the Realists hoped to discover the real patterns of judicial decision-making, thus providing information of practical value to lawyers.
Elements of this story do make scattered appearances in Duxbury's version of events (especially circa pp. 96 and 128), but the big picture never comes in to focus. This lack of a more refined jurisprudential picture of Realism also allows Duxbury to say much later that, "Legal realism...constituted a rather half-hearted, largely unsuccessful attack on legal formalism" (206). But this misses the very profound impact the sociological wing of Llewellyn, Moore, and Herman Oliphant has had on American law, even if the Realists themselves never did much serious social-scientific work. My colleague Charles Alan Wright, the leading American authority on civil procedure and federal courts, describes himself as a Legal Realist, yet he is also now the first law professor to serve as President of the American Law Institute, which oversees the "Restatements of Law." The Restatements, as Duxbury notes (147-148), were an object of bitter attack by the early Realists, who viewed them as a mere exercise in Langdellian folly! Yet as Wright-the-Realist points out to me, the Restatements have internalized the important lesson of Oliphant and other Realists: that there is no "law of contracts" per se, but rather many laws of contracts for the many concrete but recurring contexts in which contractual disputes arise. Increasingly, then, the Restatements "restate" the law not in terms of broad, generally applicable rules, but rather in terms of fact- and context-specific legal rules.[4] In other words, the Restatements now try to accomplish precisely what the Realists thought one needed positivistic social science to accomplish: a statement of the fact-specific patterns of decision followed by the courts. That Duxbury--an English lawyer, unduly influenced it seems by the Critical Legal Studies version of Realism--should have neglected this particular legacy of Realism is not surprising.
Yet Duxbury does recognize that the Realists shared the Langdellian ideal of certainty in law--though he puts the point misleadingly. The Realists, he says (quoting Grant Gilmore), were "Langdellians malgré eux," adding that we must "recognize the formalist elements in realist thought" (130). Duxbury explains that for the Realists,
...judicial decisions "could and should become more predictable" [citation omitted].... [P]redictivist-inspired realism treats as notionally desirable the facilitation of a formally certain, "prediction-friendly" system of law....And it is thus that realism...appears to attempt to discredit one formalist conception of law only to replace it with another....The assumption that it may be possible to predict future legal decisions with considerable, if not quite total, accuracy is hardly less formalist...than the basic Langdellian belief that legal doctrine is reducible to a handful of common law principles which may be applied uncontroversially to future legal disputes. (131)
The difficulty with this confused analysis is that, to the extent it is true, it is trivial and familiar, and to the extent it is not familiar, it is false. Let me explain.
It is well-known that the Realists, like Langdell, wanted to develop a science of law; their dispute with Langdell was over what that meant.[5] This should not be surprising to anyone: roughly the mid-19th-century to the mid-20th century marked the heyday of philosophical "positivism," by which I mean the view that natural science is the paradigm of all genuine knowledge. For any discipline to constitute "knowledge," on the positivist view, it must emulate natural science. Langdell was inspired by this model (as Duxbury correctly notes at 15), as were the Legal Realists. The 1920's, let us remember, was manifestly not the age of postmodernism and deconstruction![6] That the Realists should not have shared the impulse to be "scientific" would have been the real surprise.
But only by equating "formalism" with the scientific impulse does Duxbury's accusation of formalism make any sense. Yet this is an equation that obscures more than it reveals. What has always distinguished "formalism" in law is not simply the thought (common to the Realists and Langdell) that adjudicative outcomes might have causal determinants and thus be predictable, but rather that they are predictable in virtue of the law being rationally determinate: that is, in virtue of the class of legitimate legal reasons justifying a unique decision in each case.[7] It is the latter that distinguishes Langdell's science of law, and legal formalism proper, from Legal Realism. For the formalist, decisions can be predicted because the law is rationally determinate: if you know the relevant legal rules and you know the distinctive methods of legal reasoning, you know what courts will do. For the realists, this is pure mythology: the prior cases and statutes can be legitimately manipulated in different ways, so that there is rarely a determinate answer as a matter of law, at least not in those cases that reach the stage of review by higher courts. For the Realists, cases are predictable, to the extent they are, not because the legal reasons are determinate, but because a social-scientific inquiry can identify those non-legal factors that really determine the course of decision. To say, as Duxbury does, that the "more general realist view" is "that there is an implicit rationality about the legal process which allows for the possibility of predicting future decisions with a fair degree of accuracy" (133-134) is a non-sequitur: that outcomes be determinate does not require that they be rationally determinate. (Think of Freud's psychic determinism.) To collapse Realism into formalism because of the Realist interest in predicting outcomes is to obliterate one of the crucial theoretical distinctions between Legal Realism and Langdell's formalistic jurisprudence.
[1]See my "Legal Realism," in A Companion to Philosophy of Law and Legal Theory, op cit. For a lengthier treatment, see also my "Rethinking Legal Realism: Toward a Naturalized Jurisprudence" (forthcoming 1997).
[2]This aspect of Realism is well-discussed by the eminent American scholar of the Uniform Commercial Code, James J. White, in "The Influence of American Legal Realism on Article 2 of the Uniform Commercial Code," in W. Krawietz et al. (eds.), Prescriptive Formality and Normative Rationality in Modern Legal Systems (Berlin: Duncker & Humboldt, 1994), esp. at p. 401.
[3]Thus, Realist texts characteristically rejected the idea that there was a uniform body of law; instead, there are many sub-bodies of law specific to particular factual contexts. See, e.g., Leon Green, The Judicial Process in Tort Cases (St. Paul: West Publishing, 1931) (organizing the law of torts not by doctrinal categories--e.g. negligence, intentional torts, etc.--but by situation-types, like "surgical operations," "keeping of animals," and "traffic and transportation"); Charles Alan Wright, Cases on Remedies (St. Paul: West Publishing, 1955) (organized not by type of legal remedy, but by type of injury).
This type of Realist approach to legal doctrine continues to be influential in the
. For example, the leading American authority on the law of remedies, Douglas Laycock, begins his seminal attack on the irreperable injury rule (the rule that says courts won't prevent harm, when money damages will compensate for the harm) by noting that a survey of 1,400 cases shows that, "Courts do prevent harm when they can. Judicial opinions recite the rule constantly, but they do not apply it....When courts reject plaintiff's choice of remedy, there is always some other reason, and that reason has nothing to do with the irreparable injury rule. We can identify the real reasons for decision, and use those reasons to explain old cases and decide new cases." The Death of the Irreperable Injury Rule (New York: Oxford University Press, 1991), p. vii. Laycock goes on to note that, "An intuitive sense of justice has led judges to produce sensible results, but there has been no similar pressure to produce sensible explanations." United States
at ix. Laycock's project, in other words, is to make "doctrine reflect[] reality," i.e. the reality of how the courts really decide these cases. Id.
at 281. Cf. Herman Oliphant, "A Return to Stare Decisis," American Bar Association Journal 14 (1928): 71-76, 107, 159-162. Id.
[4]Indeed, Oliphant's own interesting example (in "A Return to Stare Decisis," op cit.) about conflicting court decisions regarding contractual promises not to compete has now been incorporated into the Restatement of Contracts. See especially §188 and "Comment" in Restatement of Contracts 2d (St. Paul: American Law Institute Publishers, 1981). (I am grateful to Mark Gergen for bringing this to my attention.)
[5]For one recent example of someone who makes this point, see Kronman, op cit..
[6]Contra, e.g., the quite anachronistic reading of Realism in Gary Peller, "The Metaphysics of American Law," California Law Review 73 (1985): 1151-1290.
[7]For the important distinction between "rational" and "causal" indeterminacy, see my "Legal Indeterminacy," Legal Theory 1 (1995): 481-492.
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