Brian Z. Tamanaha (St. John's University - School of Law) has posted Understanding Legal Realism on SSRN. Here is the abstract:
Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, "We are all realists now." Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, "They were all realists then too." What was said about judging at the time "a full century ago" sounds exactly like what is said about judging today.
The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that "A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group." Llewellyn also wrote that "Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell." Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about.
The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to "The Bogus Tale About the Legal Formalists" (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.
And from the text:
Although Llewellyn gleefully exposed the manipulability of precedent and the openness of statutory interpretation, he consistently retracted the most radical implications of these observations, cautioning that “while it is possible to build a number of divergent logical ladders up out of the same cases and down again to the same dispute, there are not so many that can be built defensibly [Llewellyn’s emphasis]. And of these few there are some, or there is one, toward which the prior cases definitely press. Already you see the walls closing in around the judge.”189 A skilled lawyer asked to predict the fate of a case on appeal, Llewellyn conjectured, ought “to average correct prediction of outcome eight times out of ten, and better than that if he knows the appeal counsel on both sides or sees the briefs.”190 When identifying the sources of this high degree of reckonability, Llewellyn elaborated on several “steadying factors”: judges are indoctrinated into the legal tradition such that they “see things…through law spectacles;”191 much legal doctrine—including rules, principles, and statutes—is reasonably clear and well developed;192 judges follow accepted doctrinal techniques, strive to produce a just result, and strive to come up the right legal answer;193 judges sitting together on an appellate bench interact “to smooth the unevenness of individual temper;”194 and the judges’ desire and commitment to live up to the obligations of the judicial role, to earn the approval of their legal audience for appropriate judicial behavior, and their desire to avoid reversal by a higher court, prompts judges to engage in a good faith effort to conduct an unbiased search for the correct legal result.195
The realists, to be sure, harped on the various limitations of and room to maneuver allowed by legal rules, principles, statutory interpretation, stare decisis, and the finding and stating of facts in judicial decision making. But their position is easily misunderstood if their target is not kept in mind: They were attacking the notion that judging merely entailed the logical application of legal rules and principles. Their refutation of this view—a straw man, as it was196—did not mean that they embraced its polar opposite: the notion that legal rules and principles do not have a significant role in judges’ decisions.
This piece and its companion (see above) are absolutely essential.
Highly recommended. Download it while its hot!
