American Legal Realism Explained
The origins of American legal realism may be traced in part to the rejection of the formalist approach of preceding legal philosophers such as Christopher Columbus Langdell, principal architect of the case method of teaching common law. As a formalist, Langdell asserted that legal rules should be interpreted according to the plain meaning of the words used by the drafters of the legal texts in question and that the only relevant social concerns were those legally cognizable under existing law. At least as conceived by Langdell, formalism thus involved rote memorization of applicable rules frequently applied by judges and not reasoned outlook on how the latter should be applied to any particular set of facts to achieve a coherent and socially constructive result . Formalism was more than the mere application of objective legal rules. Rather, through the caselaw method pioneered by Langdell, formalism aimed at the passivity of the law, the intention of which was to enable the judge to identify a solution to a given problem by an easy method of deduction from other prior legal decisions, usually the judgment in earlier cases. But American legal realism was a comprehensive rejection of that approach, positing that judicial institutions are, and must be, active rather than passive. Specifically, American legal realism endeavored to demonstrate and take cognizance of the many circumstances outside of the law (and indeed of the legal system itself) that can influence judges in reaching decisions.
Key Thinkers in the Movement of American Legal Realism
The most influential of the American legal realists were:
Oliver Wendell Holmes Jr. (1841-1935) was appointed to the Supreme Judicial Court of Massachusetts in 1882. In 1902, he was appointed to the United States Supreme Court, where he became a leading proponent of legal realism. His famous dissent in Lochner v. New York, 198 U.S. 45 (1905), in which he argued that laissez faire appearances did not justify curtailing the power of legislatures to set rates for private corporations, signalled a departure from the strict textual approach of the court prior to the New Deal. Among his many other important opinions are Bunting v. Oregon, 243 U.S. 426 (1917), which affirmed maximum hour laws for women workers, and Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), which interpreted the Equal Protection Clause of the Fourteenth Amendment to require states to compel a law school to admit black students when their state did not establish a separate black law school. Holmes’ legal realism comes across in his classic formulation of real values, which he wrote about in The Common Law (1881):
The life of the law has not been logic: it has been experience. The felt necessities of the time, the voices of some dead ancestor, the laws of the race, and the effects of the circuit of the sun over the sea of common life have all combined to produce the legal theories of the world about us.
As a student at Harvard Law School, enabled by Holmes’ Rule of Three, Karl Llewellyn (1893-1962) became an early realist. After practicing law for the Chicago Rock Island and Pacific Railway Company, Llewellyn served as a professor of law at Columbia Law School, where he was instrumental in drafting the Uniform Commercial Code. He also served as a reporter, along with Edward J. Hart and Karl E. Blueburger, for the Second Restatement of Torts, adopted by most courts in the United States. Despite his many publications on legal subject matter, Llewellyn’s impactful work is the formulation of the "cardinal rule" of legal realism:
The only thing ever wrong is if you don’t decide cases according to the facts when they come before you.
Jerome Frank (1889-1969) served as a law clerk to Learned Hand, director of the Securities and Exchange Commission (SEC), and as the SEC’s general counsel. Frank is perhaps best known as the chief architect of the doctrine of legal indeterminacy, popularized by his book Law and the Modern Mind (1933). As a leading judicial activist, Frank promoted the use of social science evidence to support legal arguments in the deposition of public policy questions. In Frank’s view, because of the inherent uncertainty in the law, judges should make findings of fact that support the result desired by the judge. Aside from his own influential publications, Frank is also credited with influencing the writings of his former student, Benjamin Cardozo (1870-1938), who served on the Supreme Court from 1932 to 1938.
Fundamental Tenets of Legal Realism
Central to the work of the American Legal Realists was the idea that judicial decisions did not exist in a vacuum. When making decisions, judges, wrote Edward M. Morgan, "inhabitants of society realize that they must consult their own experience and that of their neighbors—indeed, of the experience of mankind—and they translate social facts into terms of law. Thereupon they pass into the law such parts of their experience as they deem important." Law itself, they argued, was an unforeseen consequence of actions taken by people operating within a given context. The judge’s role in the legal process—not just the judge’s interpretation of the law, but in understanding the purpose and the importance of laws. Adopting this perspective, judges would appear to be more aware of the manner in which the law is applied or interpreted in their local legal systems.
Realists felt that judges should consider what the consequences of their rulings were likely to be. If a judge holding court in central city Maine were to hand down a life sentence intended for the man whose identity he tried to steal, he might have put an innocent man from Presque Isle away for a very long time. Such obvious abuses of legal power are relatively rare, but problems of this sort were common enough during the period of American legal history that realists like Karl Llewellyn and Jerome Frank were writing; today’s legal realist would be interested in how such a person would be affected by something so unusual.
This emphasis on the interaction between legal decisions and social, economic, and psychological factors has helped shape jurisprudence today. Even today, judging can best be characterized as an attempt to understand the interplay of law and all of the other factors of human life that bring about a legal conflict.
Comments and Shortcomings of Legal Realism
Despite its significant influence on the development of modern jurisprudence, the movement encountered its fair share of criticism both within the legal community and beyond. Legal realism faced particular scrutiny on the grounds of philosophical relativism, incoherence in its theoretical foundations, and the manner in which legal and sociological inquiry sought to align with the practical and scientific method.
Critics of legal realism often point to its perceived failure to articulate a coherent theory of law as one of its main weaknesses. Rather than adopting a singular view, American legal realists instead held a range of perspectives, which many legal scholars and philosophers viewed as a sign of intellectual inconsistency and lack of cohesion. Some detractors labeled the movement as fundamentally nihilistic, arguing that the realists’ rejection of legal formalism and the idea that law was merely partial and contingent prior to adjudication disallowed any future certainty in legal outcomes. By denying the predictability and determinacy of law, critics held that legal realism ultimately undermined its own policy of seeking to facilitate greater predictability in the application of legal principles.
While American legal realism acknowledged the need for judges to exercise some discretion due to the inevitable uncertainties of legal language and doctrine, its critics contended that this essential reliance upon subjective valueing meant that the application of the law was more a matter of judicial whim than it was a straightforward exercise choosing the "best" solution. The realist objection to legal formalism was thus interpreted as a retreat from the very principles of rationality and predictability that law was purportedly meant to embody. Relatedly, legal realism was also faulted for lacking an overarching jurisprudential framework. Critics argued that rather than developing a more robust account of what constitutes good law (independent of the conclusions reached), the movement had instead argued for the value of simply analyzing actual adjudication. In their view, what was sorely absent in the realist call for more empirical legal analysis was the requisite normative dimension required to objectively evaluate the effectiveness of their claimed enhanced "law in action."
In addition to questions raised by American legal realism’s epistemological and conceptual foundations, critics also charged that the movement devolved into mere policy-making, rather than legal reasoning. Critics specifically accused legal realists of being too willing to let the positive law be determined through political and policy preferences. In adopting a problem-solving approach to law, realist jurists were said to be more occupied with determining what the socially-optimal solution to a given conflict was, rather than applying the law as written. Critics have further alleged that such an emphasis on empirical observation denies the relevance of non-empirical methods, such as rational discourse or moral argument, in determining the content of law. Moreover, detractors contended that the empirical focus of legal realists sometimes masqueraded as social science scholarship, when in fact the findings did not meet scientific rigor. To reformulate a colloquial saying, the realist may have overpromised the ability of its approach by "doing science" when what it really needed to do was "do law."
The Relevance of Legal Realism to Modern Jurisprudence
The pragmatic lens through which modern jurisprudence is viewed can, in large part, be attributed to the work of the Realists. They demystified the legal process by centering its purpose on its effects. It is this movement that arguably paved the way for the Legal Process school of thought following World War II; Melvin Eisenberg has called the period "the last flowering of scientific jurisprudence." Although it failed to develop a "scientific" theory, Legal Process thinkers carried forward the Realists’ distrust of science and the scientific approach to the law, seeing in it only illusory objectivity. In the words of Karl Llewellyn, the Legal Process school, taking an instrumental view of law, viewed uniformity and coherence as desirable only at a point of final deliberation: The main standard is the ‘proper’ outcome of the legal process in terms of social and policy desirabilities…That is a question for the deliberating legislator, a (pre-vote) responsible agency staff, or a (post-vote) court-alien to be sure; but it is not a question for the jurist . The jurist’s task is wholely and simply lexical: to decide whether a manual encounter can and should be so construed that the person who pinioned that other’s arm during the encounter was the inflictor of battery on the person who was thus kept from getting himself free. And as Paul Gewirtz notes, Legal Process thinking provided the intellectual framework for both the New Deal and the Great Society, which foresaw a more active role for the courts. The notions that government itself is an important participant in the elucidation of the law and that all branches of government share responsibility for the development of law were both influenced by the Realists. Even Ronald Dworkin, who has criticized the Realists, has acknowledged the influence of the Realists on his thinking: The most important ingredient of natural law…is a version of the Realists’ claim that the actual practice of judges and administrators is crucial to the proper application of law. In their criticism of Legal Realism, Dworkin’s deepest grievance is that it directs attention away from the substantive ideals underlying the law, which leads to a "legal conventionalist" result.
Legal Realism Vis-a-vis Other Schools of Legal Thought
The debate between legal realism and other legal theories is a classic one that has largely fallen off of the radar of modern legal realist scholars. Legal realism stands in contrast to formalism, the view that the law can be objectively determined from observable facts. This view has more recently been extended to critical legal studies (CLS), which incorporates a relativistic view of the epistemology of law.
Legal realists have traditionally defined law as "what courts will do as they resolve particular cases," in other words, law is what judges say it is and it is not the rational deduction of normative principles from basic legal propositions. This has traditionally placed American legal realism in opposition to formalism, though some formalists would question whether or not this is correct. Traditional American legal realists have defined law as the predictable behavior of judges in certain circumstances, such as the facts of the case, the backgrounds of the litigants, and the personal characteristics of the judges.
There is thus a certain amount of overlap between these approaches as a result of the close connection between legal realists and legal formalists. As professor James Gordon referred to it, American legal realism is "much closer to general jurisprudence than it is to the various forms of ‘pure’ or ‘formalist’ analysis which pass for jurisprudence in the legal realists’ days." Professor Gordon surmises that this is because formalism itself was strongly influenced by the skepticism of legal realism.
The problem with trying to suss out the differences between legal realism and these competing theories is that legal realism is more grounded in the behavior of judges (and other officials in the regular course of their duties) than in any specific precept of textualism or relativism. For this reason, critics have sought to limit the purview of American legal realism into something concrete, whereas in fact it is something amorphous, shifting, and dependent on the context.
Final Considerations: The Legacy of American Legal Realism
Despite recent critiques, American legal realism continues to inform jurisprudence within law schools and, to a significant degree, within the courts themselves. Stubbornly unwilling to conclude that the theory is irrelevant, most courts and law schools have continued to incorporate or reference legal realist principles in their analyses. Though jurisprudential case-by-case adjudication may have moved from a methodical approach to a more fluid consideration of the circumstances in the case at hand, the style of analysis is in many ways the same. Courts still filter matters through the judicial process as they attempt (sometimes unsuccessfully) to apply precedent to new facts in an evolving legal milieu. Further, criminal courts – perhaps the most experienced arbiters of legal realist principles – have long set the standard for a jurisprudential approach that recognizes the impact of the societal mores on their determinations . Even the notion of freedom of speech continues to evolve in an era where the First Amendment is subjected to an increasingly critical analysis as technology integrations and growth of online forums and content dissemination do.
All told, it would be difficult to dismiss American legal realism as an obsolete jurisprudential approach. Its legacy is both ubiquitous in its application, and vital to the continuing evolution of jurisprudence, particularly as technology and societal change create new challenges that courts have yet to fully navigate. Of course, for such an impact to exist, legal realist principles must be applicable to the cases under consideration by our courts and that, too, is a subject of some debate. An updated appraisal of American legal realism in the context of current jurisprudential challenges may be in order.