What Did the Legal Realists Believe, Really?

19 February 2007 at 1:09 am Peter G. Klein Leave a comment

| Peter Klein |

I posted a while back on Karl Llewellyn and legal realism, its recent revival, and what this all means for the O&M crowd. Brian Tamanaha says that the legal realists were not, contrary to popular belief, “proto- or early-day Crits (members of Critical Legal Studies) who exposed the rampant indeterminacy of law and insisted that judging is inevitably infused with and shaped by the subjective views of judges.” Rather, Tamanaha maintains, the Realists favored a common-sense, empirically grounded approach over the overly formal and deductive method preferred by their contemporaries.

Llewellyn’s point was that the Realists were indeed critical of mechanistic accounts of judicial decision-making — as deductive and exclusively rule-focused — but they did not commit the opposite error of suggesting that judging is purely subjective and not legally constrained. Rather, the Realists brought attention to other stabilizing aspects of the craft of law and judicial decision-making besides just the legal rules. While they denied that law was certain to the extent that formalism portrayed, they agreed that there was a great deal of certainty and predictability in law (though not attributable to the legal rules alone). They also argued that in some cases policy decisions were called for and should be done openly by judges, although they recognized that many cases were routine and determined by the legal rules.

Thanks to Orin Kerr for the pointer.