Many of the Legal Theory Lexicon entires provide tools--the argumentative moves and theoretical constructs that should be in any legal theorist's toolkit. Lot's of these are drawn from other disciplines: for example, the distinction between "Concepts" and "Conceptions" is taken from philosophy and the The Coase Theorem, with its powerful idea of a transaction cost, is drawn from economics. But some of the most powerful moves are generated from within legal theory. One of those, which I am going to call "realist deconstruction of formal legal categories," is powerfully associated with American legal realism.
This move is incredibly nifty, and it will be especially useful to first year law students with an interest in legal theory. As always, the Lexicon is aimed at that group, and what is offered here is only a sketch of ideas and arguments that can be the subject of whole articles and even books.
The Basic Idea
The American legal realists were skeptical about legal formalism. In particular, they were skeptical about the idea that "logic" and abstract legal concepts were doing the work in deciding cases. One source of their skepticism was their discovery of a certain pattern in formalist reasoning. Here is one way that we might schematize or outline the pattern:
Step One: Categorization. A given fact situation, F, is categorized as falling into some formal legal category, C.
Step Two: Rule Identification. A legal rule that incorporates the category is identified and stated. The simplest rules have the following form: If the fact situaation, F, falls under category, C, then legal rule R, requires outcome, O.
Step Three: Rule Application: In the instant case, F is C, therefore O. In other words, in the case before the court, the fact situation does fall under the relevant legal category and so the rule requires a particular outcome.
This form or style of reasoning suggests that the legal work is really done in step two--where we identify the legal rule that produces the outcome. Step one looks like it is just factfinding, we are just describing the facts in terms of a legal category. The legal realists were famous for showing that step one frequently concealed something that was not factfinding at all. When the facts were categorized, what was really going on was an instrumentalist or policy-driven process, where the judge was deciding which legal category to apply on the basis of the judge's decision about which outcome was best.
This insight deconstructs the process of legal reasoning--showing that the apparent form of the legal argument conceals the real process of legal decisionmaking. Let's do an example and then we can come back to the theory.
An Example: Personal Jurisdiction Over Corporations
Law students may not always know it, but they learn the realist technique for deconstruction when they study Pennoyer v. Neff and International Shoe in the first year of law school. (This may get a few people mad at me, but I can't help but editorializing here. If your civil procedure professor skips Pennoyer and goes straight for the modern approach to personal jurisdiction, they are depriving you of one of the four or five most valuable moments in a legal education. Shame on them!)
Here is how it works. The nineteenth century approach to personal jurisdiction (the Pennoyer approach) made jurisdiction hinge on power over territory. In order to assert jurisdiction over a person, a state had to have de facto power over the person--and de facto state power is limited by territory. The state of Illinois can't send its police force into Indiana. If you have studied Pennoyer, you know that there is a piece of legal jargon (in law Latin!) that describes lawsuits in which the claim is against an individual person; these suits are called in personam actions. Here comes the tricky part: "corporations" are considered legal persons and they can be named as defendants in in personam actions. What does all that jargon mean? It means that when you sue McDonalds, the law treats McDonalds as if it were a natural person like Daniel Craig. But corporations are different from natural persons in one crucial respect: they don't have a physical location. Daniel Craig is always located in some specific space; he is either in Illinois or not in Illinois. The McDonald's corporation doesn't have a body: to use the legal jargon, McDonalds is an artificial or incorporeal person. Corporations are a web of legal relationships--contractual relationships, property relationships, fiduciary duties, and so forth. So McDonald's does not have a "physical location."
One of the most famous passages in all of theoretical legal scholarship was about this problem. It comes from Felix Cohen's famous article, Transcendental Nonsense and the Functionalist Approach. Cohen's brilliant move was to argue that when court's decided "where" a corporation was located, they were actually deciding the personal jurisdiction issue. And since a corporation doesn't have an actual or real physical location, something else must be doing the work. What is the something else? Cohen argued that the something else must be some consideration of policy.
Here is an excerpt from Cohen's article (the whole thing is available at Hein Online):
Clearly the question of where a corporation is, when it incorporates in one state and has agents transacting corporate business in another state, is not a question that can be answered by empirical observation. Nor is it a question that demands for its solution any analysis of political considerations or social ideals. It is, in fact, a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?” Now it is extremely doubtful whether any of the scholastics ever actually discussed this question. Yet the question has become, for us, a symbol of an age in which thought without roots in reality was an object of high esteem.
Will future historians deal more charitably with such legal questions as “Where is a corporation?” Nobody has ever seen a corporation. What right have we to believe in corporations if we don’t believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the right to hypostatize, to “thingify,” the corporation, and to assume that it travels about from State to State as mortal men travel. Surely we are qualifying as inmates of von Jhering’s heaven of legal concepts when we approach a legal problem in these essentially supernatural terms.
Yet it is exactly in these terms of transcendental nonsense that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State. “The essential thing,” said Judge Cardozo, writing for a unanimous court, “is that the corporation shall have come into the State.” Why this journey is essential, or how it is possible, we are not informed. The opinion notes that the corporation has an office in the state, with eight salesmen and eleven desks, and concludes that the corporation is really “in” New York State. From this inference it easily follows that since a person who is in New York can be sued here, and since a corporation is a person, the Susquehanna coal Company is subject to suite in a New York court.
The Realist Reconstruction of Formalist Argument
We can take this realist move and reconstruct the true or underlying structure of legal arguments. Here is how it might go:
Step A: Instrumentalist Assessment of Outcomes. Given the facts of the case, which of the possible legal outcomes is best on policy grounds? Or more formally: given fact situation F, which outcome O is the best outcome on policy grounds, P.
Step B: Identification of the Legal Rule. The legal rule that will decide the case is identified and stated. The simplest rules have the following form: If the fact situation, F, falls under category, C, then legal rule R, requires outcome, O.
Step C: Outcome Driven Categorization. Given that the judge wants to reach the best outcome, B, what categorization, C, is necessary under rule R to reach B? Categorize the facts, F, so as to reach that outcome.
In other words, the legal realists believe that all the real work of formalist argument is done in formalist Step One (Categorization). The realist understanding of the actual decision process is reconstructed as Steps A, B, and C in the realist deconstruction of the formalist argument. Steps Two and Three of formalist argument are simply the process by which judges dress up their policy-driven decisions in formalist clothing.
Of course, there is a lot more to be said about this realist move. In the context of personal jurisdiction over corporations, the realist deconstruction was especially compelling because the physical location of a corporation is a legal fiction--and hence, the legal rule and ordinary factfinding can't really be driving the decision. But this is not always the case. In order to truly master realist deconstruction, you need to recognize that it works in some cases but doesn't in others.
But realist deconstruction of formalist legal reasoning is a lot of fun, especially when you first begin to master the technique. I hope this post has given you the tools to attempt your applications of the technique.
- Felix S. Cohen, Transcendental Nonsense and the Functionalist Approach, 35 Colum. L. Rev. 809 (1935).
- Jeremy Waldron, Transcendental Nonsense" and System in the Law, 100 Colum. L. Rev. 16 (2000).
- Felix S. Cohen, Wikipedia, https://en.wikipedia.org/wiki/Felix_S._Cohen
Related Lexicon Entries
- Legal Theory Lexicon 043: Formalism and Instrumentalism
- Legal Theory Lexicon 063: Interpretation and Construction
- Legal Theory Lexicon 067: The Priority of the Particular
(Last modified on August 5, 2018.)