March 04, 2008
Posted by Gordon Smith

A group of faculty at BYU has been working through The Canon of American Legal Thought one article at a time. The project started because John Fee and I were interested in the possibility of teaching a class from the book, but it has thrived because all of the participants are having great fun being students again. Our sessions have produced some memorable moments, like when John said, "Wesley Hohfeld seems like the kind of person who would take pleasure in reminding you that a tomato is a fruit, not a vegetable."

One of the recurring themes in the early works in this volume is predictability. In "The Path of the Law," for example, Holmes asserts that "pretty nearly the whole meaning of every new effort of legal thought is to make [our] prophesies [of what courts will do] more precise, and to generalize then into a thoroughly connected system."

In Llewellyn's contribution -- "Some Realism About Realism" -- we again encounter the assertion that appellate litigation is indeterminate and the aspiration that legal theory can enhance predictability:

[The Realist "movement" is] a first attack upon the realm of the unpredictable in the actions of courts. That attack suggests strongly that one large element in the now incalculable consists in the traditional pretense or belief ... that there is no such area of uncertainty, or that it is much smaller that it is. To recognize that there are limits of the certainty sought by verbalism and deduction, to seek to define those limits, is to open the door to that other and far more useful judicial procedure: conscious seeking, within the limits laid down by precedent and statute, for the wise decision. Decisions thus reached, within those limits, may fairly be hoped to be more certainly predictable than decisions are now--for now no man can tell when the court will, and when it will not, thus seek the wise decision, but hide the seeking under words. And not only more certain, but what is no whit less important: more just and wise (or more frequently just and wise). [Italics in original; bold added.]

One thing I find interesting about this passage is Llewellyn's focus on judicial decision making. While it stands to reason that more insightful judges would make more predictable and just decisions,  this claim is quite a bit different from the usual claim about the contribution of Realism. For example, Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 267 (1997), argues that the Core Claim of Legal Realism is that "judges respond primarily to the stimulus of facts. Put less formally--but also somewhat less accurately--the Core Claim of Realism is that judges reach decisions based on what they think would be fair on the facts of the case, rather than on the basis of the applicable rules of law."

Proceeding from this Core Claim, the main contribution of Realism to predictability would not be that the nature of judicial decision making had changed, but rather that our understanding of those decisions had improved. Again, from Brian Leiter:

[I]f the Sociological Wing of Realism--Llewellyn, Moore, Oliphant, Cohen, Radin, among others--is correct, then judicial decisions are causally determined by the relevant psycho-social facts about judges, and at the same time judicial decisions fall into predictable patterns because these psycho-social facts about judges--their professionalization experiences, their backgrounds, etc.--are not idiosyncratic, but characteristic of significant portions of the judiciary. Rather than rendering judicial decision a mystery, the Realists' Core Claim, to the extent it is true, shows how and why lawyers can predict what courts do.

In the end, I am left wondering whether predictability of appellate decisions has improved at all since the 1930s. Most legal questions, even those raised in appellate courts, seem quite a bit simpler than those portrayed by Llewellyn in this passage:

[T]he line of inquiry via rationalization has come close to demonstrating that in any case doubtful enough to make litigation respectable the available authoritative premises--i.e., premises legitimate and impeccable under the traditional legal techniques--are at least two, and that the two are mutually contradictory as applied to the case at hand.

Even most appellate cases are not "doubtful enough to make litigation respectable" if this sort of indeterminacy is required for respectability. And those cases that must be resolved from "mutually contradictory" premises are likely no easier now than they were then.

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