Brian Leiter's Legal Philosophy Blog

Green on Legal Realism and Naturalized Jurisprudence

Via Solum, I learn that my (part-time) colleague Les Green's (long-gestating) paper on "Law and the Causes of Judicial Decision" is finally on SSRN (it will appear in final form in Green's forthcoming collection of papers from OUP).  I have a number of quibbles about Leiter interpretation (the most important is that I've noted since at least my 1996 essay on Realism for The Blackwell Companion to the Philosophy of Law and Legal Theory that Felix Cohen was guilty of the kind of conceptual rule-skepticism Hart attacks--though oddly Hart never cites Cohen), but the core challenge is an interesting and novel one. 

On my account, most Realists are committed to the claim that the law (more precisely, legal reasoning) proves to be indeterminate in most of the cases that reach the stage of appellate review.   This indeterminacy arises, on the Realist argument, from the fact that there exist equally proper but conflicting ways of interpreting authoritative sources of law (like statutes and prior court decisions) such that the same source can yield conflicting rules (think of Llewellyn on the canons of statutory construction and the strict and loose view of precedent).  (Jerome Frank is an exception to this generalization, since he thought the crux of indeterminacy in legal reasoning resided in the latitude judges have in characterizing the facts of the case in terms of their legal significance, and so he thought intedeterminacy was pervasive.  I bracket his idioynscratic views here.)  In Green's terminology, the Realists deny that at the appellate level, cases are governed by "mandatory norms," i.e., rules that impose obligations on the judges to decide the case just one way and not any other. 

But Green's challenge is:   on what grounds can we cabin the argument for indeterminacy just noted to only those cases that reach the stage of appellate review?  In fact, their arguments for rule-skepticism (for indeterminacy) ought to entail that there are no mandatory norms anywhere in the legal system.  And any theorist who denies that there are any mandatory norms is denying something H.L.A. Hart (among many others!) affirms.   So, contra my presentation, there is a significant incompatibility between the positivist theory of law and Legal Realism.  Green's proposed solution to the dilemma is to suggest that we should understand the Realists to indeed recognize that there are legal norms, but to hold that they are all only "permissive" rather than mandatory:  they provide easily defeasible reasons for decision, reasons that are often defeated at the appellate level, less often in more humdrum cases. 

 

Now the notion of a "permissive" legal source is interesting in its own right, but the question I need to answer is why the Realist arguments for the indeterminacy of legal reasoning, which they deploy to good effect with respect to tons of examples drawn from appellate decisions, do not in fact entail denying the existence of any mandatory legal norms.  Here is one possibility (I am here truly "thinking out loud," though this thought has some resonance with issues raised in the context of explaining theoretical disagreements):  even if, in principle, the same conflicting methods of interpretatino could be applied in non-appellate cases, in fact, they are not, and officials (more or less) converge on the same results.  So, in principle, all norms are merely "permissive" (in something like Green's sense), but in fact lots of legal norms act as if they are mandatory because of this fact about the actual interpretive practice of officials.

A Puzzle About Heller

Yesterday, the U.S. Supreme Court held that the Second Amendment to the U.S. Constitution protects the right of indviduals to own weapons (such as rifles and pistols) for self-defense.  Larry Solum (Illinois) offers a fine and helpful overview of the opinion here.  Larry is a fan of Justice Scalia's brand of "public meaning" originalism--which we've discussed before--and so usefully focusses on the interpretive framework Justice Scalia employs in the majority opinion.  It had previously been thought by many courts and commentators that the Amendment--A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed   --read naturally and literally protects the rights of citizen militias to hold weapons, but, although not as plain, it isn't implausible to read it as really protecting an individual right, and certainly not when one lays as much emphasis on 'original' meaning and parsing delicate phrases as Justice Scalia does.  (On the question of "original meaning," the comments of Mark Tushnet [Harvard] are also apt, though.)

But there remains a real puzzle here, which probably tells us more than originalists would like about their interpretive method (which, as one distinguished commentator has suggested, is "bunk").  For after informing us that,

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation,

and then going through the detailed analysis of the pieces of the clause (well-summarized by Solum) to reach the conclusion that,

we find that they guarantee the individual right to possess and carry weapons in case of confrontation,

Justice Scalia suddenly informs us that:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Now how is this out-of-whole-cloth set of limitations on the right to be squared with the interpretive principle that "words and phrases were used in their normal and ordinary as distinguihsed from technical meaning" and that "normal meaning...include[s] idiomatic meaning, but...excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation"?  Quite obviously, there is no reference to the felons or mentally ill in the text of the Amendment, and while those of the founding generation had the notion of felons, they did not have our notion of mental illness, which did not make its debut until the 19th-century.  The same can be said, one suspects, about "sensitive places."  (Indeed, it would hardly be surprising that plenty of folks in the "founding generation" did, indeed, carry their guns to school!) 

So how are any of these limitations to be squared with the apparently 'scholarly' and paintstaking analysis of the clause and the guiding interpretive principle announced at the start?  It is not at all obvious.  Perhaps the thought is that the framers, if they had thought about schools, and how they would evolve, or if they were familiar, as we are, with the nature of mental illness, then of course they would have understood that the individual right of self-defense does not extend to the mentally ill or to those in schools.  But the moment we go that route we then open the door to also asking, "Well, what if they were also familiar with modern urban area afflicted by poverty and gun violence, wouldn't they have also entertained a limitation on the right in the same way?"  In which case, what work is the public meaning originalism really doing?

Non-anonymous comments strongly preferred; post only once; comments are reviewed for relevance.

UPDATE:  Larry Solum (Illinois) addresses the puzzle here.

Spaak Reviews Me

Larry Solum (Illinois) kindly flagged for me that Torben Spaak, on the law faculty at Uppsala University in Sweden, has posted a review essay about my Naturalizing Jurisprudence collection.  I have just read through it quickly (as I'm heading out of town), but it seems a fair-minded engagement with my book (for which I thank Professor Spaak), and particularly interesting because of its contention that the Scandinavian Realists are the naturalists in jurisprudence to whom we should really pay heed.   (I've suggested previously that the Scandinavians demand more sympathetic attention, so I welcome his suggestion, though I'm not sure he is entirely sensitive, at least in this review essay, to the worries about the viability of their position.)  One small point:  Professor Spaak is mistaken in suggesting (at p. 3) that I think causal explanations rule out reason-based explanations.  I am, as I say at p. 4, a "relaxed" naturalist, meaning whatever works makes it into our ontology.  The Hempel/Dray debate Professor Spaak references is ancient history as far as genuinely methodological naturalism is concerned. 

Because I am on the road currently, comments (if there are any) may take longer than usual to appear.

Tamanaha on "the Bogus Tale about the Legal Formalists"

Brian Tamanaha (St. John's/Institute for Advanced Study) has posted a revised version of this provocative paper which he gave here in Austin several weeks ago.  (I am going to work off the version of the paper he gave here, since I have simply not had time to read the posted version in its entirety--though perusing the revised and posted versions, I think the points raised here still stand.  I have, in any case, alerted Brian to the post, and invited him to correct me if changes in the new version vitiate any of the points, below).

I am skeptical that Tamanaha has established the strong form of his thesis in this paper, to wit, that

Jurists in the formalist age held views of law and judging as realistic as we do today.  Judges and theorists did not widely think of judging as a mechanical or deductive process.  The legal realists were not pioneers of realism about judging.  Just about everything the realists said about judging was said decades earlier by individuals who have been identified as important formalist thinkers, as well as by many others in legal circles, including a number of accomplished judges.  The US legal culture has swallowed whole a largely fictional tale about views of judging during the so-called 'formalist age.' (5)

Tamanaha makes some telling points against particular claims by Grant Gilmore and Jerome Frank, among others, who purported to establish the existence of a formalist age.  I certainly do not want to come to their defense against Tamanaha's expose of their careless scholarship.  But even granting his reasonable criticisms of those who overstated their case, it seems clear to me that Tamanaha overreaches his own evidence, and thus also overstates his conclusions, in a variety of ways:

1. Tamanaha's evidence for his thesis consists of jurists and scholars saying "realist-sounding" things prior to the 1920s.  (I say "realist-sounding" because what is involved in being a realist on Tamanaha's view is a bit ambiguous:  we'll return to that, below.)  No one, of course, should think that American Legal Realism arose ex nihilo in the 1920s, so it should hardly be surprising that there were jurists and scholars saying "realist-sounding" things prior to the 1920s:  of course, Legal Realism had a pre-history!  More interesting is that subset of Tamanaha's evidence regarding jurists and scholars saying "realist-sounding" things in the late 19th-century, the purported heyday of "formalism".  (Limiting the evidence that way does, however, exclude a great deal, but certainly not all, of the evidence Tamanaha cites--he is, in general, far too impressed with someone saying something "realist-sounding" in the 19-teens, only a handful of years before the emergence of Legal Realism as an intellectual movement!) 

2. Yet even the import of late 19th-century quotation evidence is impossible to interpret absent two additional pieces of information which are, alas, absent from Tamanaha's paper:  First, are these quotations representative of views in the late 19th-century?  Second, even if representative, were they more or less common than similar sentiments in the 1920s and 1930s? 

We are interested in the question:  was there a "formalist age," i.e., an era in which something called "formalism" captured a widely shared view or ethos?  As Tamanaha indicated during his workshop here, his claim is that "most "jurists and lawyers during the purported "formalist era" did not embrace formalism.  Adducing quotes of jurists and lawyers who did not embrace formalism, however, quite obviously does not establish that thesis.  Are these quotes representative?  Were there jurists and lawyers making formalist claims at the same time?  What were the relative proportions of each?  Certainly--this would be hard to deny--the overwhelming majority of judicial opinions (then as now) were written in a formalistic style, i.e., as though there were a pre-ordained answer required by law which the court merely discovers.  We need to know whether the quotes that Tamanaha collects really capture the Zeitgeist. Tamanaha often points to the importance of the journal where a particular quote appears, or to the fact that a jurist or scholar in question is sometimes called, by the Gilmores and Franks of the world, a "formalist," even though (as Tamanaha shows) he says "realist-sounding" things.  But this is not really enough.  We need to know how many eminent jurists and scholars were saying "formalist-sounding" things at the same time as those he quotes were saying "realist-sounding" things.  Tamanaha may have the evidence.  It is not in this paper.

But let us suppose--in the best credible scenario for Tamanaha--that a significant minority or even a bare majority of scholars and jurists in the late 19th-century were saying "realist-sounding" things, the ultimate question is how that compares to the 1920s and 1930s?  We might still reasonably call the late 19th-century the "formalist age" if it turns out that far more leading scholars and jurists said "realist-sounding" things in the 1920s and 1930s than in the 1870s and 1880s.  Once again, Tamanaha's paper is entirely silent on this question which, as far as I can see, is crucial to establishing the strong form of his thesis.  (Stefan Vogenauer, the Professor of Comparative Law at Oxford, who was visiting at UT Austin this Spring, made a version of this second point in the workshop, so I hereby credit him for this observation!)

3.  Tamanaha plays a bit fast-and-loose with what counts as saying something "realistic," and this, I think, is quite central to the argument of the paper as it stands.   Throughout the paper--perhaps most clearly in Part II, but not only there--evidence of "realism" in the purported formalist age is supposed to consist in the fact that jurists and scholars recognized the role of judges in "making law" in a common law system. 

This seems rather thin evidence, though.  One might have thought the "official" distinction between common law and civil law jurisdictions was precisely that, in the former, judges "make law," and that the only people who deny that are a fringe group of "historical" or "natural law" jurists who think the common law is just the unfolding of reason, truth, or God's will!  When Tamanaha cites (21) a scholar in 1907 rejecting the idea that the common law is "the perfection of reason," he is hardly citing someone at the vanguard of Legal Realism!  If the best evidence for the "Realism" of the so-called "formalist-age" is that most jurists and scholars did not hold fantastic views of the common law, Tamanaha's argument would be weak indeed.  (Not all of Tamanaha's evidence is this bad, to be sure--but I was quite startled to see him invoking as evidence of "realism" that jurists and scholars held the ordinary view of the common law.)

4.  Tamanaha gives us no sense of what was distinctive about the arguments and claims of the Legal Realists, which makes it rather too easy for him to describe earlier views as examples of "the Realism of the Formalist age".  For example, Realists (as I have reconstructed them:  cf. my Naturalizing Jurisprudence) argued that:  (1) legal reasoning is indeterminate in cases that reach the stage of appellate review because of the existence of equally legitimate but conflicting canons of interpretation that can be applied to precedents and statutory materials; (2) in deciding cases, judges are responsive to 'situation-types'--recurring factual patterns that elicit a predictable normative response from most jurists, a response that is not, however, predictable based on existing paper rules and doctrines; and (3) in the commercial law context especially, judges look to the "normal" practices in the existing commercial culture in deciding what is the right outcome.  Tamanaha adduces no evidence that I saw that these actual theses of the Realists enjoyed any currency in the late 19th-century.

5.  The strong version of Tamanaha's thesis--if it were true--would also render mysterious the strong reaction to Legal Realism in the 1930s and 1940s, and continuing to the present day.  After all, if it were true that there was no "formalist" age and that Legal Realism just continued earlier lines of thinking, then why did Roscoe Pound, John Dickinson, and Lon Fuller, among others, react so strongly to Realism? 

Indeed, on this very blog, we have just recently seen Professor Robert Stevens of University College London contesting the truth and plausibility of Legal Realism--even in Tamanaha's extraordinarily vague sense of "a skeptical take on judging" (p. 7)--and defending a kind of "formalist" view of the law.  Surely it would be incredible to suppose that this "formalist" view of the law, and skepticism about "realism," emerged only in British legal academia in recent years?  Ronald Dworkin clearly holds the view that Frank attributes to the formalists (pp. 14-15), namely, that "the law, ready-made, pre-exists the judicial decision," yet, again, it would be startling to learn that, until Dworkin, no one held this kind of view of law.  One suspects that Tamanaha's history is highly, and misleadingly, selective, and that the Stevens's and Dworkin's of the 19th-century may have vanished from this historical rendering.

6.  A final point:  early on, Tamanaha cites (p. 3) a 1999 Columbia Law Review article of mine charactizing formalism as "the descriptive theory of adjudication according to which (1) the law is rationally determinate, and (2) judging is mechanical.  It follows, moreover, from (1), that (3) legal reasoning ia tuonomous, since the class of legal reasons suffices to justify a unique outcome; no recourse to non-legal reasons is demaned or required."  Yet nothing in his entire article has any bearing on this claim, which is about competing jurisprudential views.  Even if most late 19th-century writers were "realists" instead of "formalists," this would have no bearing on the jurisprudential question about how we ought to understand adjudication.  Tamanaha needs to be clearer on this point.  His best target are writers like Gilmore and Frank who overstate the "formalist" tendencies of a certain era in legal thought.  The vice he must avoid is overstating, to the same extent, the "realism" (in any philosophically interesting sense) of that very same era.

"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. 

Cardozo on the Tasks of Philosophy of Law

This is Benjamin Cardozo from The Growth of the Law (Yale University Press, 1924), p. 24-25:

A philosophy of law will tell us how law comes into being, how it grows, and whither it tends.  Genesis and development and end or function, these if things, if no others, will be dealt with in its pages.  To these it will probably add a description of the genesis and growth and function, not only of law itself, but also of some of those conceptions that are fundamental in the legal framework. 

Most of these tasks are not--at least not at all obviously--part of the philosophy of law today, in part because it is not obvious that philosophers have the requisite skills and knowledge to address these potentially vast socio-historical issues.  This is, no doubt, because the reference point for what counts as "philosophy" has changed from Cardozo's day to our own.   Cardozo's most frequent philosophical references are to James, Windelband, Bergson, and Dewey.  Has anyone even read Windelband?  (I have heard the name, but I have not read him.)  It is a foreign philosophical climate, now forgotten (or should we say vanquished?), perhaps rightly so, perhaps not.  To be sure, some still read and teach bits of James and Bergson and Dewey, but they do not define the "climate" of philosophical opinion or inspire the "tasks" of the discipline.

"New" Legal Realism?

[Originally posted on June 21, 2006]

The Empirical Legal Studies blog is running a series of posts about what is called "The New Legal Realism Project," which is centered at the University of Wisconsin, Madison, and which aims "to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law."  As some commenters have already pointed out, it is not entirely clear what this project has to do with American Legal Realism.  I'd like to suggest an answer:  essentially nothing.

The actual Legal Realists, to be sure, paid homage to the social sciences, even adopting the rhetoric of the then-dominant behaviorism (e.g., talk about the "stimulus" of the facts of the case), but their actual scholarly practice was almost entirely insulated from the social science of the day--the unfortunate exception being Underhill Moore, who squandered his days recording the parking habits of New Haven drivers, and coming up with forgettable insights like when the parking rules change on a street, it takes awhile for all the drivers to figure that out (though issuing tickets helps!).

This isn't to say that the Realists weren't interested in what the courts do in fact, it's just that their approach to the facts about what courts do almost entirely eschewed social scientific inquiry, and for good reasons I think.  The paradigmatic Realist inquiries of the 1920s and 1930s--Oliphant on the promise-not-to-compete cases, Llewellyn on the New York sales cases, Green on "proximate cause" in tort law, Handler on trademark--consisted in careful scrutiny of the underlying facts of lines of cases, bringing out the gap between the official "doctrinal" explanation for the decision and the actual sotto voce norms that seemed to be at work in the judge's thinking.  The goal was to discover the non-legal norms that made best sense of the courts' response to recurring "situation-types," i.e., patterns of fact that seemed to elicit the same kind of results.  So, in Oliphant's famous example (from an article titled importantly "A Return to Stare Decisis"), he denied that there was a single, general rule about the enforceability of contractual promises not to compete:  rather, courts enforced those promises when made by the seller of a business to the buyer, but found ways not to enforce them  when made by a (soon-to-be former) employee to his employer. In the former scenario, Oliphant claimed, the courts were simply doing the economically sensible thing (no one would buy a business, if the seller could simply open up shop again and compete); while in the latter scenario, courts were taking account of the prevailing informal norms governing labor relations at the time, which disfavored such promises.  A meaningful doctrine of stare decisis could be restored, on this account, by making legal rules more fact-specific, i.e., by tailoring them to the underlying situation-types to which the courts were sensitive. (The extreme version of this hypothesis is vivid in Leon Green's 1931 textbook on torts, which was organized not by the traditional doctrinal categories (e.g. negligence, intentional torts, strict liability), but rather by the factual scenarios—the “situation-types”--in which harms occur: e.g. "surgical operations," "traffic and transportation," and the like. The premise of this approach was that there was no general law of torts per se, but rather predictable patterns of torts decisions for each recurring situation-type that courts encounter.) 

That the preceding was the heart of the Realists' "empirical" method explains, of course, why the Realists were so influential in American law:  you didn't need social science training to do this kind of analysis, you just needed to be a sensitive and skeptical reader of court opinions, something good lawyers are, well, good at.  (Even my late colleague Charles Alan Wright described himself as a "legal realist," for he took the task of his great procedure treatise to be the same as Oliphant's approach to the promise-not-to-compete cases.) 

A "new legal realism" would continue the paradigm of scholarship established by the old legal realists, namely, contrasting what courts say they’re doing with what they actually do.  "We are all realists now" because this is what so many legal scholars do, including those who know nothing of social science and don't even self-identify as realists.  Consider the classic modern debunking of what courts call “the irreparable injury rule” by Douglas Laycock in his 1991 book on the subject. The irreparable injury rule states courts will not enjoin misconduct when money damages will suffice to compensate the victim.  Laycock reviewed more than 1400 cases and concluded:

Courts do prevent harm when they can. Judicial opinions recite the rule constantly, but do not apply it...When courts reject plaintiff's choice of remedy, there is always some other reason, and that reason has nothing to do with the irreparable injury rule....An intuitive sense of justice has led judges to produce sensible results, but there has been no similar pressure to produce sensible explanations. 

Like the old realists, Laycock finds a disjunction between the “law in the books” and the “law in action,” and, also like the realists, he invokes as an explanation for that disjunction the decision-makers' "intuitive sense of justice." Like Oliphant before him, Laycock seeks, in turn, to reformulate and restate the rules governing injunctions to reflect the actual pattern of decisions by the courts following this intuitive sense of justice.

None of this is to deny the potential value of sound empirical work on law and the legal system.  Such work might even illuminate the gap between what the courts say they're doing and what they're actually doing.  (The formal political science literature on this subject is, alas, rather disappointing.)  It is only to say that the "new legal realism" as the Wisconsin project conceives it has rather little to do with the "old legal realism" which had such a significant impact on American law and legal scholarship.

(I've developed this interpretation of American Legal Realism, with the appropriate scholarly documentation, in various places, but an accessible version is here.)