Jurisprudence
Tutorial 8
Legal Realism
Do you believe that judges make law? Don't you take it for granted that they do? Or do you believe that judges only 'find' law which was already made?
The legal realism movement had its heyday in the late 1920s and early 1930s. Remember that this is long before Dworkin and Hart! It was the time of the Roaring Twenties, Great Depression and the New Deal. The Legal Realism school declined after World War II when natural law had a great comeback, but, even today it continues to have an influence on the way we look at law. It has been said that we are all realists, and there are two important modern movements, economic analysis of law and critical legal studies (CLS) which came out of the the realism movement.
It started with Justice Oliver Wendell Holmes, Jr. Holmes in the 1880s. He came up with a "prediction theory" of law and a "bad man" account of the law. He proposed that the job of lawyers (and judges actually) is to predict what a judge and jury will decide in a given case.
[Although Hart later complained that this made judicial decision-making much too easy and that it did not make sense to say that a judge has to predict his own decision. But in fact, this is a question that lawyers get asked every day: how strong is my case?]
Holmes came up with the "Bad man" account of the law which states: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience". "The bad man does not care two straws for axioms or deductions". [Does this remind you of anything? How about Hart's internal and external aspect of law.]
Holmes said, Judges must inevitably take account of social considerations, including economic considerations, in forming their legal opinions. In particular, they should consider whether a given law or ruling will have good consequences for society. Holmes felt that this aspect of legal reasoning ought to be made explicit. If judges actually had to state the actual issues at stake, they would see how controversial their positions are and thus feel far less confident about them. I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said ... I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions. (Holmes, “The Path of the Law,” pp.14-15)
He also thought that legal reasoning should be explicit about the social and economic considerations it embraces—so much so that lawyers and judges would benefit from being trained in economics and statistics.
...........
from: http://legal-dictionary.thefreedictionary.com/Legal+Realism
Between 1931 and 1932 Llewellyn and Pound had a spirited debate about what legal realism really was.
There was no single realism school, but rather five various movements.
1. The view that law follows the dominant economic and political powers in society, e.g., in Losee v Buchanan (1873) the Court held that a landowner's right to enjoy property could be modified by the needs of the social state. It said "we must have factories, machinery, dams, canals and railroads."
In recent years realists have complained about laws which uphold economic exploitation and since the 1950s have focused on political exploitation. For example, the CLS have complained about McCleskey v Kemp (1987) in which the Supreme Court rejected a constitutional challenge to capital punishment despite evidence that black defendants are almost three times more likely than whites to receive the death penalty for murdering a white person.
2. The view that the outcome of a dispute will vary according to the political, cultural and religious persuasion of the presiding judge. Even where language is clear, the judges must interpret. Think about Riggs v Palmer. Two conflicting principles: courts must interpret a will according to the explicit intentions of a testator vs no man shall profit from his own wrongdoing.
3. The view that law should focus on the most fragile members of society. These realists complained about the decision in Lochner, where the Court struck down a law limiting the number of hours an employee could work per week in the baking industry.
4. A practical wisdom approach (remember Judge Handy in Speluncean)? The judge must identify competing interests, values and policies, consider the consequences of each approach on present and any future litigants, and come up with the most durable result.
5. All of the above -- a synthesis of the approaches. These realists believed that lawyers who studied all elements: political, economic, social, practical, personal, and pyschological, would have a better idea of how a judge would rule.
Would you say we are all realists now? What happens when you watch a big case on American tv such as the MJ case (or for those of you who can remember, the OJ case)? Don't the commentators give us all these factors including the background of the judge, and try to predict the outcome of the case?
........
Karl Llewellyn (1893-1962).
A founder of the U.S. legal realism movement, he believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases:
He said, "; “rules ... are important ... so far as they help you see or predict what judges will do or so far as they help you get judges to do something. That is their importance. That is all their importance except as pretty playthings.”
Extracted from Anglo-American Philosophy of Law.
Llewellyn used the term realism in the most ordinary way: to see what was actually going on in the law.
He said there were certain things all realists believed:
Llewellyn mainly focused on the appellate courts. He felt that judges should be trained to explain how their decision was reached. He objected to all rules being lumped together without any discrimination. For example, you cannot just talk about rules relating to contracts when domestic and commercial contracts are different. He argued that instead of looking at the traditional rules in order to predict the outcome of the case, we should look at: 1) the role played by the personality of the judge, 2) the interaction of the facts with traditional concepts, typical fact situations and their outcomes, 3) the cases of a particular state, and 4) legal remedies instead of rights.
Also he thought that there should be scrutiny of human behaviour in business, anthropology, psychology, economics, etc, and the effect of the courts on the general public (eg, those in lower brackets.)
What about his method for a judge to use? He writes about this in The Bramble Bush (1930)
http://sobek.colorado.edu/~mciverj/2481_BrambleBush.PDF
Precedent especially becomes relevant when it is seen as something that should be followed, rather than mere habit (reminds us of Hart's distinction between habits and rules). There are also policy reasons for following precedent in any situation: a new official is given the accumulated experience of his predecessors. If he is ignorant or idle, he can learn from their wisdom and industry. If biased or corrupt, there is past practice to compare his actions with and this provides a check. Of course if the predecessors where ignorant, idle and biased, this still gives a basis for prediction.
One objection to precedent would be that in this last case, a new strong judge is chained. Or it may be that society has changed and needs new rules.
In fact, however, precedent does not tell the full story. Different judges can look at the same precedent and use it in different ways. The Court can confine it to its facts, or can use it as a springboard for a new decision. The doctrine of precedent is therefore two-faced, and there are actually two doctrines. The same lawyer may use both at the same time to cut down all the cases against him and build up those for him. Thus a strong judge is not bound by the past -- he can free himself.
What this means, however, is that you cannot predict the outcome of a case based on rules alone! Imagine five judges coming to a unanimous conclusion based on five different rules. A skillful lawyer uses his powers of persuasion to convince the court as to the rightness of his side. But it cannot be said that there are rules which are set in stone.
...........................
Jerome Frank (1889-1957)
In "Law and the modern mind" (1930), he says that "even in a relatively static society men would not be able to construct a comprehensive, eternized set of rules anticipating all possible legal disputes and settling them in advance." New modes of travel, dwellings, credit, ownership, customs, and other innovations make this impossible. (Picture the new thing known as a credit card, or internet banking).
He points out that in other fields there is a willingness to accept probabilities instead of certainties, and references Heisenberg's Uncertainty Principle (1927) which heralded the advent of quantum mechanics. He asked why law did not embrace the "inherent uncertainty in law" instead of trying to conceal it. The population believes that law should be certain. Why do lawyers not disabuse them of this notion? And why do judges give their ruling as though the principles are so clear? If they were, then there would not be a few hundred cases listed for hearing every week.
He says that it is because lawyers themselves believe that the law is clear. That the judicial process in applying the law is almost mathematical, and that there are certain answers.
In fact, it is of benefit to society that law be malleable and that lawyers know how to modify it. Example, in 1890 Congress passed the Sherman Act, making illegal "every contract in restraint of trade". In a series of cases from 1896 to 1904 the Supreme Court (SCOTUS) struck down all contracts and not merely those which created unreasonable restraint. They said that the language was clear. In almost every case, Justice White wrote a minority opinion in favour of "unreasonable". In 1911, in the Standard Oil and Tobacco cases, the SCOTUS decided that the law had always referred to "unreasonably". Now the majority opinion was written by Justice White. He even went so far as to say that the Court had always interpreted the Sherman Act according to the rule of reason. What had happened? Most of the earlier judges had resigned or died, and the new judges were more like White. But he refused to acknowledge this!
This gave rise to many cynical comments about the tricky ways of the law.
Why do judges and the legal system pretend that judges do not make law? They essentially claim that do not discover law any more than Columbus discovered America! And if it is necessary to overturn a previous decision, it is because the previous judge got it wrong, just like if a cartographer drew a line wrong in a previous map. The new judge has better eyesight.
This myth is useful because otherwise the legal system would have to admit that it was doing retrospective legislation.
But does it matter? Most people live their lives with only a vague idea of the law, so it doesn't matter if the law changes after they have carried out their actions or if it changes before. (John Chapman Gray). Unfortunately, though, this gives rise to a distrust of the legal system.
Frank divides realists into rule skeptics (Llewellyn) and fact skeptics (himself). The former believe that there is no such thing as certainty of rules, and that law is simply the prediction of what the courts will decide. Rule skepticism is based on the open texture of law and the intuitive decisions made. The Rule skeptics look mainly to the Appeal Courts. They feel that rules can be manipulated to achieve the desired outcome.
The fact skeptics look at the lower courts. Even if the rules are fairly steady, what will happen in a case depends on the facts, and on what happens in the court, eg, witnesses lying, etc. Frank notes that only 75-80% of contract cases can be predicted to be resolved in accordance with actual principles of law. The facts are fluid, and there are two points of slippage: the witnesses remembering what happened at the event, and the judge remembering what happened in the court room. Frank was very concerned because evidence is usually given months or even years after events by witnesses who have only incomplete knowledge of the events. This led him to suggest reforms in the methods for ascertaining facts.
In addition, because of profound and immeasurable biases which influence judge and jury in their reaction to witnesses, lawyers and litigants, we can never know what they will believe the facts of the suit to be. For example, they may have plus or minus reactions to labourers, businessmen, foreigners, doctors, men with deep voices, men with high voices, women with tics, and this will interfere with their evaluation of the facts. Frank suggests that we should study psychology in law school and that judges should be psychoanalyzed before they go on the bench! He advocated adding more social studies to the curriculum to bring it into line with how law is actually practised. (He even felt that students should study judicial corruption).
It is the difficulty with facts, Frank believes, which make it difficult for lawyers to predict the outcome of cases. They must guess whether some of the witnesses will persuasively lie, or honestly but persuasively give inaccurate testimony. He must also guess the reactions of the judge and jury to the witnesses. He feels that able lawyers are usually able to guess how a case will go once the facts are agreed between the parties.
The Caribbean
Unfortunately we do not have a great deal of judicial scrutiny in some of our Caribbean Islands. While some legal systems such as the OECS have rigorous requirements for hiring judges and judicial conduct, in other places the functionaries of the Courts are shrouded in secrecy. You cannot find online biographies of the Barbados judges, for example, in the same way that you can for the CCJ justices. We do have some research into the impact of certain legislation, especially in family law, but I have not come across of great deal of writing as it relates to criminal law. What is the true impact of the mandatory death penalty? Is it significant that some of the most heinous crimes committed in Barbados have been found to be manslaughter?
Between Dworkin and the Legal Realists, which model do you think better explains our Caribbean jurisprudence? Are the outcomes of our cases predictable, or is it true that the judges use the rules to create their own preferred outcomes? Can a Caribbean lawyer, on average, tell a client what to expect in Court? Was Boyce and Joseph predictable (or your other favourite Caribbean case)?
Bibliography
http://www.westga.edu/~rlane/law/index.html
http://www.answers.com/topic/legal-realism
"Jurisprudence". West's Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005
http://www.law.msu.edu/king/2004/2004_Mackey.pdf
http://academic2.american.edu/~dfagel/Class%20Readings/ALCReadings/Altman%20Legal%20Realism.pdf