Karl Nickerson Llewellyn Research Paper

2. Llewellyn and American Legal Realism

Llewellyn was the most important and famous figure associated with the American Legal Realism of the 1920s and 1930s, a movement that transformed the way both academics and lawyers thought about law. The Realists argued against the dominant ‘mechanical jurisprudence’ or ‘formalism’ of the day, which held that judges decide cases on the basis of distinctively legal rules and reasons, which justify a unique result in every case. The Realists argued, instead, that a careful look at how judges really decide cases reveals that they decide not primarily because of law, but based on their sense of what would be ‘fair’ on the facts of the case.

Legal rules and reasons figure simply as post-hoc rationalizations for decisions reached on the basis of non-legal considerations.

2.1 Legal Indeterminacy

The Realists argued that the law was ‘indeterminate.’ By this, they meant that the available class of legitimate legal reasons did not justify a unique decision, especially in those cases that reached the stage of appellate review. Llewellyn argued for indeterminacy based on the existence of conflicting, but equally legitimate, canons of interpretation for precedents and statutes. So, for example, courts had endorsed both the principle of statutory construction that, ‘A statute cannot go beyond its text,’ but also the principle that ‘To effect its purpose a statute must be implemented beyond its text’ (Llewellyn 1950, p. 401). But if a court could properly appeal to either canon when faced with a question of statutory interpretation, then the ‘methods’ of legal reasoning (including principles of statutory construction) would justify at least two different interpretations of the meaning of the statute. In that case, the question for the Realists was: why did the judge reach that result, given that law and legal reasons did not require him to do so? Llewellyn (1930) made a similar argument about the conflicting, but equally legitimate, ways of interpreting precedent, which he called the ‘strict’ and ‘loose’ views of precedent. According to Llewellyn, a judge almost always had the latitude to characterize the decision of a prior case in a highly fact-specific way, so as to distinguish it from the present case, or to characterize its holding in a way that abstracted from the specific facts of the earlier case, so as to make it binding in the present case. Thus, a precedent never really constrained a judge in a later case, because he could construe it ‘strictly’ to distinguish it, or ‘loosely’ to treat it as binding.

2.2 Two Branches of Realism

All the Realists agreed that the law and legal reasons are often indeterminate, so that the best explanation for why judges decide as they do must look beyond the law itself. In particular, all the Realists endorsed the following ‘core claim’: in deciding cases, judges respond primarily to the stimulus of the facts of the case, rather than to legal rules and reasons.

There was, however, a division among Realists over the question of how to explain why judges respond to the underlying facts of the case as they do. The ‘Sociological’ Wing of Realism—represented by Llewellyn (1930, 1960, 1962)—thought that judicial decisions fell into predictable patterns (though not, of course, the patterns one would predict just by looking at the existing rules of law). From this fact, these Realists inferred that various ‘social’ forces must operate upon judges to force them to respond to facts in similar, and predictable, ways. These social forces might include the economic background of the judges and their professional socialization experiences. It was these factors, rather than rules of law, that account for decisions and determine the responses judges have to the underlying facts of the case.

Llewellyn’s focus was on the professional socialization and background of judges that would lead them to be sensitive to the norms of ordinary commercial practice. Focussing primarily on commercial law disputes, Llewellyn argued that what judges really do in these cases is try to enforce the uncodified but prevailing norms from the commercial culture in which the dispute arose. Llewellyn (1960, pp. 122–4) gave this famous example: a series of New York cases applied the rule that a buyer who rejects the seller’s shipment by formally stating his objections thereby waives all other objections. Llewellyn notes that the rule seems to have been applied rather harshly in the NY cases, since either the buyers may not have known at the time of rejection of other defects or the seller could not have cured the defects anyway. A careful study of the underlying facts, however, revealed that in each case where the rule seems to have been harshly applied what had really happened was that the market had gone sour and the buyer was looking to escape the contract. The judge, being ‘sensitive to commerce or to decency’ (1960, p. 124) applies the unrelated rule about rejection to frustrate the buyer’s attempt to escape the contract. Thus, the commercial norm—buyers ought to honor their commitments even under changed market conditions—is enforced by the courts through a seemingly harsh application of an unrelated rule concerning rejection. It is these ‘background facts, those of mercantile practice, those of the situationtype’ (1960, p. 126) which determine the course of decision.

Llewellyn’s seminal work on the Uniform Commercial Code was informed by his Realist perspective (cf. White 1994). For example, the Code imposes an obligation of ‘good faith’ in all contractual dealings, which is defined as requiring not only honesty but also ‘the observance of reasonable commercial standards of fair dealing in the trade.’ But for a judge, then, to enforce the rule requiring good faith is just for the judge to enforce the norms of commercial culture! The reliance of the Code throughout on norms of good faith and ‘reasonableness’ is a constant invitation to the judge to do what he would, on the Realist theory, be likely to do anyway: enforce the norms of the prevailing commercial practice.

The ‘Idiosyncracy Wing’ of Realism, by contrast— exemplified most prominently by Frank (1930)— claimed that what determines the judge’s response to the facts of a particular case are idiosyncratic facts about the psychology of that individual. Thus, Frank notoriously asserted that ‘the personality of the judge is the pivotal factor in law administration’ (1930, p. 111). This view is hard to square though with lawyers’ ability to predict rather well what judges will do (if they could not do that, litigators, at least, would be out of business). Despite its extreme nature and limited appeal to most Realists, Frank’s view has come to dominate the current picture of Realism, to the extent that Llewellyn’s far more typical ‘sociological’ approach is often neglected.

3. Impact and Current Importance

By calling attention to the role of nonlegal factors in judicial decision-making, Llewellyn and the Realists initiated the interdisciplinary turn in American legal education, and made clear the need for lawyers to draw on the social sciences in understanding the development of law and what judges do. Much contemporary political science literature on law and courts takes its inspiration from Realism by seeking to explain decisions not by reference to legal reasons (which are assumed to be indeterminate) but by reference to facts about the politics, background, and ideology of the judges (Cross 1997). Recently, it has even been argued that Llewellyn’s own approach to commercial law anticipated the now dominant economic analysis of the business law fields (Schwartz 2000). This should hardly be surprising, though, since the economists seek to structure legal rules to maximize efficient outcomes, but efficiency is surely an important norm of all mercantile practice: thus, if judges enforce the norms of mercantile practice (as Llewellyn claims they do and should do), it will turn out that judges will try, among other things, to produce efficient outcomes.

Llewellyn’s work on Native American law and dispute resolution practices (Llewellyn and Hoebel 1941) remains an anthropological classic, while his introductory lectures to Columbia law students (Llewellyn 1930) may lay claim to being the most widely read book on law by generations of American law students. While the Uniform Commercial Code (UCC), the single most influential piece of commercial law in the US, bears Llewellyn’s imprimatur, it is often lamented in recent years that revisions to the UCC have moved it away from Llewellyn’s original vision of a Code sensitive to actual commercial practice. Even so, the lawyers and scholars effecting these changes continually feel the need to grapple with Llewellyn’s conception.

Within jurisprudence, Llewellyn’s ideas have been subjected to extensive criticism by analytical philosophers (notably H. L. A. Hart), though more recently a philosophical defense has been mounted (Leiter 1997). Among legal scholars, however, Llewellyn’s ideas remain influential, both in scholarly movements (like ‘Critical Legal Studies’ and ‘Law and Society’) that emphasize law’s indeterminacy and the need to look at extra-legal factors to explain law, but also in the work of judges, who now attend to the specific facts of cases (the ‘situation-types’ as Llewellyn called them) and general nonlegal policy considerations much more openly than before the triumph of Realism in American law.

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