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April 4, 2008

"In Praise of Realism (and Against 'Nonsense' Jurisprudence)"

A draft of what was my Dunbar Lecture in Law and Philosophy at the University of Mississippi last week is here

Posted by Brian Leiter on April 4, 2008 in General Jurisprudence, Legal Realism, My Articles, The Continental Traditions | Permalink


I find both of the following highly implausible. (1) All decisions' stated reasoning can be taken at face value. (2) No decision's stated reasoning can be taken at face value.

Couldn't a "realist Dworkinian" respond along the following plausible lines? "A judge could in good faith consider herself to be engaged in constructive interpretation of the sort Dworkin describes, while being subconsciously led to conclusions that in fact align with her own political convictions or those of the official/party who appointed her. So evidence that the politics of a judge's decisions aligns with that judge's personal politics isn't alone sufficient reason not to take judges' stated reasoning at face value."

Posted by: Brutum Fulmen | Apr 5, 2008 7:02:03 PM

I am not in a position to comment on the merits of the overall thesis. However, I am competent to comment on the use of Macpherson v Buick Motor Company.

It is stated that "the new rule in Macpherson made good economic sense in an age of retailers who distributed mass distributed goods to thousands (sometimes millions) of consumers. Here the potential for injury was enormous, but producers not retailers were obviously in the best position to minimise the dangers."

It is implicit in the text at p 71 that this was the basis of Cardozo's judgement. There is not a hint of any such reasoning in anything he says.

The decision is here


Now some legal realists/economists consider that although the judges may not state that they have such policy or efficiency goals in mind when they reach decisions, really these sorts of considerations underly their decisions. This is, of course, an exciting an interesting position to adopt. It involves uncovering a truth hidden to those of us who naively take what judges say at face value. It is the world of hose who continue to insist that President Kennedy was *really* killed by a conspiracy of the cia/mafia/the Vatican. It is the grassy knoll theory of law.

The old rule in Winterbottom v Wright that conduct carried out pursuant to a contract was ipso facto exempt from giving rise to liability to anyone else does not withstand serious scrutiny. This is so regardless of whether you live in a world of mass manufactures. It is has been overturned in every common law system in the world, and has never reflected the law anywhere else. In Dworkin's terms, Winterbottom was a mistake, removed by Hercules/Cardozo. I don't know of any torts lawyer who would maintain that the old rule was not a mistake.

Even assuming it to be true, for the sake of argument, that the reason for the overturning of the rule in Winterbottom was that it no longer made sense in an era of mass production, would this refute Dworkin? I don't think so. The appropriate rule is dependent upon the facts at the time of judgment. Where the facts change, it is perfectly acceptable to have a different rule. We see the this phenomenon in relation to, for example, the appropriate standard of manufacture of products, or whetehr it is considered appropriate to wear a seatbelt for purposes of contributory fault. The law does not remain static as the background facts change. Where the judge appears to change the applicable rule because the background facts have changed removing the basis for an earlier decision, his refusal to follow earlier authority is not a legislative action.

I am quite sure that there are cases which can be used to bash Dworkin. Macpherson v Buick Motor Company is not one of them.

Posted by: Rob Stevens | Apr 16, 2008 4:36:10 AM

The statement that "the new rule in Macpherson made good economic sense in an age of retailers who distributed mass distributed goods to thousands (sometimes millions) of consumers. Here the potential for injury was enormous, but producers not retailers were obviously in the best position to minimise the dangers" was a reference to what is the standard explanation for the decision, given that the actual 'reasoning' of the opinion lacks, shall we say, cogency.

English lawyers may well be naive, but presumably they are not so naive as to be unable to distinguish between gradations of plausibility when it comes to skepticism about the stated reasons for a decision or action. Bush said he launched his war of aggression against Iraq to protect the national security of the U.S. I assume there must be a few naive English lawyers who are skeptical about this reasoning. A 5-4 majority of the U.S. Supreme Court in Bush v. Gore offered convoluted reasoning over Florida election law and the 14th Amendment to the U.S. Constitution that they said required them to halt the recount in Florida in 2000. I assume, again, that there are at least some naive English lawyers who are skeptical that the given reasons explain the decision precisely because they fail to rationalize it.

Here is a simple explanatory principle, one deployed to good effect by the Realists in numerous case studies: if reasons fail to rationalize a decision then they are unlikely to explain it. That's what is at stake in MacPherson.

I am perplexed as to the relevance of the long aside about Winterbottom. Professor Stevens reports the current consensus, yet surely knows as well as I do that variants of the Winterbottom rule were treated as controlling by courts and lawyers for a very long period of time before the modern consensus emerged. Indeed, and embarrassingly so I would have thought for the naive English lawyer, one year before MacPherson the U.S. Court of Appeals for the Second Circuit applied a version of that rule in excluding automobiles from the category of inherently dangerous items, thus maintaining privity as a requirement for liability. If Cardozo had even pretended to have a principled explanation for discarding the rule of that case it might be tempting to have some sympathy for naifs and their view of the matter.

Perhaps such an explanation is to be located in the idea, as Professor Stevens puts it, that, "Where the judge appears to change the applicable rule because the background facts have changed removing the basis for an earlier decision, his refusal to follow earlier authority is not a legislative action." That does not appear to have been Cardozo's own view of the matter. But the more serious challenge, as I note in the lecture, is to articulate this kind of principle in a way that it constitutes a meaningful constraint on the legal reasoning.

Posted by: Brian Leiter | Apr 16, 2008 7:49:11 AM

I do not accept that Cardozo J's judgement lacks cogency. It may appear to do so to someone who thinks the law is about achieving some sort of socail or policy goal. He doesn't talk about regulating manufacturers or who is the cheapest cost avoider or anything of that kind. He doesn't mention what sort of change to society he is trying to bring about. Rather than jumping to the conclusion that Cardozo J was being, at best, disingenuous, I'd suggest that this did not form the basis of his judgment.

The old rule in Winterbottom which he departed from was a mistake. There is nothing 'anomolous' about holding somone who in performing a contract injured a third party liable, as the third party is not claiming upon the contract: as Cardozo explains see the penultimate paragraph.

Sometimes mistakes get imbedded in the law. In removing one, as Cardozo did in Buick, the appropriate course is to show how it does not fit with the surrounding law. That is why Cardozo J takes such care in discussing the related authorities. To a lawyer, tehre is a plenty of reasoning there.

The English equivalent to Buick is Donoghue v Stevenson. It is here:


For those who think law is all about achieving a particular political agenda, it will appear to be similarly perplexing.

It is easy (in my view too easy) to be a cynic. In the country of Bush v Gore such cynicism can become a matter of course. Where I live the appointment of members of the judiciary, at all levels, is not a politicised process, perhaps making it easier to be naive. However, the fact that in some cases the judges have an agenda which is undisclosed should not lead us to conclude that they always have, even when they change the law.

The common law has changed markedly over the last one hundred, indeed four hundred, years. Someone changed it and it wasn't elves. However it is not the case that every change can be attributed to the judge arrogating a legislative role to himself. Macphearson v Buick is a good example of change which occurred without such illegitimate exercise of power.

If judges do base decisions based upon considerations that they have neither the political legitimacy or technical competence to assess (eg the good economic sense or otherwise of holding the manufacturer in Buick liable) the correct response is not to be open and honest about this. The correct response is not to reach decisions based upon those considerations. That, or resign.

Posted by: Rob Stevens | Apr 16, 2008 9:19:50 AM

The issue here is not cynicism, but what is true and accurate. One possibility, I should think, is that the Realist perspective is true in the U.S., false in the U.K., though I am skeptical. (I suspect there are other reasons that Realism never took hold in the U.K. that have more to do with the nature of legal education, but that is a topic for a different day.) Edward Levi, a rather experienced lawyer whom I quote at some length, accepted something much closer to the Realist's view of the case rather than Professor Stevens's, and I assume this was not for lack of apprecation of Cardozo's legal reasoning and its cogency.

I agree that "it is not the case that every change [in the common law] can be attributed to the judge arrogating a legislative role to himself," but do not think MacPherson a very credible example on that score. What precisely is the cogent reasoning, for example, that underlies Cardozo's disregard for the prior year's decision in Cadillac v. Johnson?

Let me add that I appreciate this vigorous challenge to the use of the MacPherson case, and would welcome further thoughts from Professor Stevens or others sympathetic to a more traditional, doctrinalist view of the matter.

Posted by: Brian | Apr 16, 2008 10:15:31 AM

In the category of shameless (though I hope relevant) self-promotion, may I refer interested readers to a piece that Ben Zipursky and I published in Volume 147 of the U. Penn. L. Rev., titled "The Moral of MacPherson"? It offers an elaborate reconstruction of Cardozo's reasoning, one that is much closer in spirit to Rob's than to Brian's. I also published in the Stanford L Rev an extended review of Andrew Kaufman's biography of Cardozo. IMHO it demolishes the claim of Gilmore, R. Posner and others that Cardozo was a legal realist who hid his realism behind traditional legal rhetoric. Sorry to be so self-referential.

Posted by: John Goldberg | Apr 16, 2008 11:02:09 PM

John, thank you for the reminder about those pieces, esp. the Stanford Law Review essay, which I had not seen. Goldberg & Zipursky are, for those unfamiliar with their work, the arch-Moralists of tort theory these days (in the sense of "Moralist" discussed in my lecture). For the response of a torts "Realist" to their ideas, one might also look at a piece by my colleague Jane Stapleton examining their views: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004181

Posted by: Brian Leiter | Apr 17, 2008 7:58:17 AM

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