Legal Realism Research Paper

1. Difficulties In Defining ‘Legal Realism’

The Realist movement has been seen as an outgrowth of the Sociological Jurisprudence of Rudolf von Jhering as expounded by Roscoe Pound (1911–12), as well as a reaction to Pound’s work. In addition, many have understood Realism as an outgrowth of the thought of Oliver Wendell Holmes, Jr. (1897), although it is not clear that such an identification is warranted, given Holmes’ relentless pessimism and lack of faith in democracy. Also, while all agree that Realism was a reaction to legal formalism, sometimes referred to as ‘conceptualism’—the notion that legal rules can be correctly deduced from a proper understanding of the nature of a limited set of important, narrowly legal premises—there nevertheless is disagreement as to whether any significant American legal thinker held such a position and thus what an opposition to formalism might signify. The most that can be said is that all scholars agree that some portion of the activities of individuals commonly called Realists was directed at critique of the doctrinal results of legal formalism, at understanding judicial decision-making, at empirical research in law, at reform of legal education, and at participation in the activities of the New Deal administration of Franklin D. Roosevelt.

There is, however, nothing like agreement among scholars about the relative importance of these various activities for understanding Realism; moreover the weighing of relative importance in part determines who is included in a list of The Realists. Thus, while it is likely that most scholars would agree that Thurman Arnold, Charles E. Clark, Walter Wheeler Cook, William O. Douglas, Jerome N. Frank, Walton H. Hamilton, Karl N. Llewellyn, Underhill Moore, Herman Oliphant, and Hessel Yntema belong on the list, the inclusion or exclusion of men such as Adolph A. Berle, Walter Bingham, Felix Cohen, Morris R.

Cohen, Arthur L. Corbin, John Dewey, Leon Green, Robert L. Hale, Robert M. Hutchins, Edwin Patterson, Thomas Reed Powell, Edward S. Robinson, Max Radin, Fred Rodell, Wesley Sturges, and Leon Tulin, all plausible figures, will change one’s understanding of Realism, as well as be dictated by that understanding. What follows, therefore, is only one of several possible expositions of American Legal Realism. Other expositions can be found in the works of Duxbury (1995), Horwitz (1992), Hull (1997), Kalman (1986), Purcell (1973), Rumble (1968), Stevens (1983), Twining (1973) and Verdun-Jones (1979).

2. A Contestable Definition

‘Legal Realism’ is best understood as the reaction of a group of individuals within the American legal academy to the collapse of the Progressive movement after World War I, the decisions of the United States Supreme Court invalidating economic regulation on grounds either of substantive due process or of interference with vested contractual rights, and the general shift of the USA to the political right in the Harding, Coolidge, and Hoover administrations. The important words in this definition are ‘within the American legal academy,’ for the movement largely took place at three schools—Columbia, Johns Hopkins, and Yale. Obviously, this definition does not succinctly describe the political orientation of the Realist movement. On this topic the best that can be said is that, taken as a whole, the Realists were hardly radicals. It would be astonishing to learn belatedly that any of these men were members of the Communist Party, and it is doubtful whether any even voted Socialist. Many served in the Roosevelt administration, but doing was an indication of socialist leanings only to the most reactionary members of the business elite and their Republican Party allies. Thus, Realists are better seen as mainstream liberals caught in a very conservative time.

The relationship of the Realist movement to the Progressive movement can be seen both positively and negatively. Positively, there is the similarity in the political causes supported (organized labor), and opposed (big business). Also, the empirical research engaged in by many of the Realist scholars is similar to research undertaken by Progressive reformers (although not progressive law professors) before World War I. Indeed, both groups shared an ‘all men of good will’ ethics, as is evident from the notion underlying their empirical research that once the facts about a social problem are known, then reform will follow. In this sense neither group was committed to what we would now see as an ideological view of law that, in contrast, would suggest that exposure of the ‘facts’ about a social practice might bring embarrassment, but would also bring denial and resistance to change. For both the Progressives and the Realists evil existed in the world, but it existed in individuals, not in classes or other affinity groups.

The Realists’ relationship to the Progressive movement can be seen negatively in the reaction of the members of the movement to Pound as Dean of the Harvard Law School. Pound was a mainstay of the legal wing of Progressive reform movements before World War I. His condemnation of ‘Mechanical Jurisprudence’ (Pound 1908) was a rallying cry for Progressives, as was his exposition of ‘Sociological Jurisprudence’ (Pound 1911–12). Pound’s jurisprudence was designed to be a response to the first wave of antiprogressive constitutional decision-making by the Supreme Court. It seemingly encouraged empirical research by emphasizing the difference between ‘the law on the books and the law in action’ (Pound 1910), in order to urge courts to avoid a formal, mechanical application of law, and instead to recognize, balance, and thus adjust the interests of the parties in the light of contemporary social and economic conditions.

Yet, for the Realists, Pound was also part of the problem that their activities were designed to address. For them, all of Pound’s talk about the gap between the law on the books and the law in action and about the need for balancing of interests had never translated into the Activity of exploring these gaps or identifying the interests in question through empirical research, or into actually suggesting how particular interests might be balanced. Moreover, Pound’s law school was little changed from the school of Langdell and Ames, seen by Realist scholars to be among the arch formalists. It reflected none of what they saw as the implications of Progressivism and Sociological Jurisprudence for legal education—a revision of category systems, an emphasis on factual investigation, and explicit work on social policy.

3. What Realists Did

What the above definition pointedly lacks is some explicit statement of what the Realists believed, and therefore what Realism is. This omission is intentional. Realism is what Realists did and it is only with that aphorism in mind that one can make sense of the disparate materials that were published by what must be seen as a network of friends, not a coherent intellectual position. Start, then, at the beginning.

Although some pre-War work by Bingham has a particularly Realist cast, Realism largely started at Columbia with pieces by Cook and Moore, who respectively argued for a more empirically based understanding of the real, as opposed to verbal, activities of appellate courts in the field of conflict of laws and of the real, as opposed to verbal, activities that made up the institutional practices that the law defined, such as property and contract. From their work, one can see that Legal Realism is not even a distant relative of philosophical realism, the doctrine that the concepts of daily life are ontologically real, but, as Leiter (1997) has suggested, is much closer to naturalism in art or literature, a commitment to see and describe the realities of daily life scientifically, that is without idealization or the avoidance of the ugly, although in Legal Realism’s concern with democracy and the activities of the middle class, there is some affinity with literary and artistic realism as well.

Curiously, the group of Realists who taught at Columbia, including Oliphant, Llewellyn, and Douglas, was not particularly interested in constitutional law, as might have been expected given the group’s affinities to Progressivism, but in corporate and commercial law. These men argued that, because of antiquated ideas about judicial decision making, in areas of law related to business, just as in constitutional law, the law was lagging behind changes in commercial life, particularly the growth of the large corporation employing thousands of workers and the change in methods of production and distribution of goods that had broken older patterns of finance and trade. This focus had much in common with the Institutional Economics of John Commons, Richard T. Ely, and Thorstein Veblen that emphasized the way that the institutional, by which they meant regular, patterns of economic behavior determined the growth or decline of industries, attitudes toward labor, and practices in the pricing of goods. Thus, Moore worked on the law of banking, Oliphant on labor and antitrust, Llewellyn on the sale of goods, and Douglas on corporations and commercial bankruptcy.

Even more curiously, the empirical research that was implied by the work at Columbia was not undertaken there, but rather at Yale and Johns Hopkins, mostly in the years after the Columbia law faculty blew up over the results of a Dean search. At Yale, pioneering empirical work, superintended by Clark, Douglas, and Moore, focused on the activities of the federal courts in civil, criminal, and bankruptcy cases, on the activities of bankers in handling negotiable instruments, on the operation of the tort system in auto accidents, on the effect of parking regulations in altering the behavior of parkers, and on the legal needs of citizens of modest means. At Johns Hopkins, equally pioneering work, superintended by Oliphant, Yntema, and their colleague at Columbia, Leon C. Marshall, was done on the operation of state courts in civil, criminal, divorce, and justice of the peace cases. Much of the rest of the scholarship of the Realists, though not empirical in the narrowest sense, was still within artistic and literary naturalism’s desire to describe the realities of daily activities. Cook’s continuing work on what courts were really doing in conflict of laws doctrine and Green’s parallel work on torts doctrine, fit this mold, as does the work of Arnold and Robinson on the symbolic uses of law, Llewellyn’s work on commercial practice, Hutchins’ work on the psychological underpinnings of evidence law, and Berle’s work on corporate governance. All of this work, and most of the more narrowly empirical work as well, was directed at critiquing legal, particularly judge-made rules, but Realism is more famous for its related, but more frontal assault on contemporary understandings of judicial decision-making.

Realists attacked formalist understandings of judicial decision-making in three ways: logically, psychologically, and sociologically. The logical attack argued that legal concepts that the formalists, especially the formalists on the Supreme Court, saw as necessarily determining decisions were not in fact determinative. Here Realists relied on Wesley N. Hohfeld, who argued that legal concepts inappropriately treated as unitary various discrete legal relationships, any one of which could not be implied from the existence of another; on Judge Benjamin N. Cardozo, who asserted that there were four different methods for deciding a case and so allowed the judge the ‘sovereign prerogative of choice’; on Cook, who claimed that legal rules ‘hunt in pairs,’ so that for every rule there is an exception or counter rule whose application would lead to a different result; and on Llewellyn, who eventually demonstrated that there is a great range of acceptable techniques for dealing with a legal precedent. Together, these observations suggested that legal concepts did not produce necessary results by the use of logic alone, but rather permitted judges a choice of results, a choice that was made surreptitiously, as it were, without explicitly considering the function that the rules played in society or the policy behind those rules.

The psychological attack argued that judicial opinions, traditionally presented in a seemingly syllogistic form, hid a decision that was reached in very different ways. Here Realists relied on the work of another judge, Joseph Hutchinson, who argued that most decisions were decided on the basis of a ‘hunch’ about the appropriate result, and of Frank, who argued strenuously that a judicial opinion was but a rationalization of a decision reached in another way, that formalism was motivated by an infantile search for paternal authority and that a truly adult judge would recognize and expose the many factors, particularly the idiosyncrasies of his response to the facts proven at trial, that lead to the choice that was made in an individual case. Together these observations suggested that judicial decisions obscured behind a web of false necessity the real factors that operated to generate results in particular cases.

The sociological attack, which was more muted than either of the other two, attempted to identify the factors at work behind the facade of the judicial opinion. Here the most common argument implicitly drew on the work of William J. Ogburn, who argued that the structure of social understandings of the world commonly lagged behind the practices that these understandings purported to describe. Versions of this concept of ‘cultural lag’ were offered by the Realists to explain how it was that judges utilized an ‘outdated’ economic theory to understand labor conditions or commercial transactions, an ‘outdated’ psychological theory to understand witness testimony, or an ‘outdated’ political theory to limit governmental action to address the conditions of modern life. It was here that the Realists’ jurisprudence, as that word is traditionally used, met up with their interest in empirical research. Faced with the facts gathered from empirical research, it was assumed that judges and other legal actors would come to abandon their outdated theories.

The Realists’ remedy for the inadequacies of formalism was functionalism. The problems with formalism were seen to be the lack of relationship between the concepts and categories of the law and the ‘realities’ of modern life. Closer attention to these realities would allow one to focus the law’s attention on institutions, such as the organized activities of businessmen in a trade association, and on the functions that these activities represented, and so see to it that the law addressed directly the problems in that trade as a matter of effective and appropriate social policy. Such an analysis would disclose just when the law needed to be updated because of its lag behind social practice and also would expose circumstances where law was dysfunctional, where a body of doctrine was ineffective, as, for example, when Arnold argued that the antitrust laws provided the comfort of a myth that law was doing something to address public fears about big business, while ignoring the anticompetitive practices that made for monopoly. For all the talk about functionalism as an antidote to formalism as a jurisprudence, indeed for all that Realism is taken to be a jurisprudence, it is important to understand that much of the impetus behind realism was educational. The Realists were mostly law professors for whom the question of how to present the materials of law study was a daily concern. It is with respect to legal education that functionalism and empirical research might have been expected to have some real bite. Functionalism raised questions about what were the appropriate categories under which to group the legal materials, and a study of the entire curriculum at Columbia was undertaken to examine how the curriculum could be organized more functionally. Similarly, empirical research was designed to answer the questions about the efficacy of the institutions and rules of law in the aid of understanding what social policy was appropriate in each functionally defined area.

Although almost no part of the curriculum was rearranged functionally, indeed, for example, the course in trusts is still taught despite the absolutely withering critique that Arnold leveled against it, and though law professors do little more empirical research today than was the case before World War I, it is in the area of education that Legal Realism had its greatest impact. The critique of formalism utterly changed the way that law was justified in the law school classroom. From a formalism based on assertedly logical derivation from the nature of a given legal category the justification of legal rules has shifted to a realism based on assumed knowledge of social conditions to which law is applied in the pursuit of supposedly agreed upon social policy. The law professors now talk the language of the early twentieth century political science professors, as well as of the bureaucrats in Washington and in scattered state capitals. Whether this is an advance is for others to say.

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