AMERICAN REALISM

Text argues that ‘realist’ isn’t the best term for legal ‘realists’ because true realists are founded on Plato who taught that “things of everyday life are but imperfect copies of ‘rea’ (ideal) forms which transcend our senses”.  But the legal realists are the opposite – “they attack what they claim to be the only too prevalent in the traditional legal science, the conception of law as a ‘brooding omnipresence in the sky’”.  Legal realists think of lawyers are talking of rules as genuine entities that occupy the ‘universe of law’ and treat legal concepts like ‘right’, ‘duty’ or ‘possession’ as if they had a metaphysical essence.  Text comments that these realists agree on the falsity they want to dismiss rather than focusing on what reality should be substituted.
Oliver Wendell Holmes is credited with inspiring the American realist movement.  Holmes didn’t believe judges could just do whatever they like – in judgements he said he was bound to hold the law wasn’t as he would like it to be.  He was an expert in common law, in American constitutional law and was a moderate, liberal reformer.  Holmes did attack the idea that all inherited legal provisions could be rationally defended and any tendency to expound law which didn’t have a direct bearing on courts’ decisions.

Holmes’ contemporary, John Gray, an academic, had a ‘similar court-centred bias’.  “as a theorist he insisted that the law was comprised of the rules laid down by the courts” – whereas statute and other legal materials were only a source of that law.

1920’s and 30’s were the ‘heyday’ for American realists – along came ones like Karl Llewellyn who warned against merely reading the law from the books – he said law was ‘what officials do about disputes – that ‘mere rules would often not tell us much about decision because they can be construed differently and different rules could be selected from the mass of rules available.  He softened his view over time and felt that rules if kept “in their proper bounds” did have a proper role to play.

Judge Jerome Frank

The “most extreme” of the American realists.  He criticised Llewellyn and others for “upper courtitis” – said that they were ‘rule sceptics’ but he was a ‘fact sceptic’.  In his opinion rules weren’t effective even if very clear on interpretation, because the lower courts were open to find the facts “as it pleases so that a rule will give the decision it wants”.  He held that the basis for the court’s decision would be on conscious and subconscious attitudes, beliefs and prejudices peculiar to the parties involved, the witnesses and facts of each case. [p100]  He said:
For any particular lay person, the law, with respect to any particular set of fats, is a decision of a court with respect to those facts so far as that decision affects that particular person.  Until a court has passed on those facts no law on that subject is yet in existence.

He does say though, that he ‘isn’t intending to give a definition of law suitable for all purposes and that his case is deliberately overstated’. 
Realists say that rules aren’t all that matter in the admin of justice (not that a theorist would argue on that) and a positive point is that realists have influenced directing research towards non-ruled governed operations however this wasn’t completely neglected before anyway.

Text says must take the realist view at face value – particularly that of Frank. 
Two crucial theses: 

Rules by their nature can’t control decisions by courts and other officials.

The overriding function of law is the settlement of disputes.

Court’s standpoint is that there’s a dispute and legal rules are supposed to generally provide the answer.  Frank however says that judges and others are deluded in this way.  Text says he refers to it as a ‘childish hang-over which is satisfied by a belief that ‘the law’ (a father figure) dictates what is to happen’. 

“This must be a delusion” – because decisions are based on “multiplicity of motives operating on the finder of facts which leads him to find suitable facts to fit the rules that will support the decision” – the motives would produce the same decision regardless of the rules meaning that in the interest of truth having an idea that’s there’s law before the decision should be dropped.

Further argument in the text against Frank’s theory is that if legislature’s rules don’t have any determinative effect on disputes, then it must be assumed that the orders of a judge can’t have any determinative effect on later disputes involving the same issue (e.g. enforcing the judgement given) – i.e. if statute wasn’t binding rule of judge X how can judge X’s order be a pre-existing rule for judge y.

How far do you take the realists argument?  If one is just a ‘rule sceptic’ then they can be a realist on difficult cases => clear cases governed by the rules, but if the law is uncertain then must abandon the legal reasoning in favour of behaviour prediction -> that’s what in essence it would be.

Couple of further arguments against realism – if rules didn’t matter then why bother to make changes to the rules since judges wouldn’t be applying them anyway.  Further how would we know who the officials are, since they are supposed to be appointed according to rules.

Realism sounds extreme – text says it was ‘never intended to be as extreme as it sounds’ – even Llewellyn denied it was meant to be – he said ‘realism is not a philosophy but a technology … what realism was, and is, is a method nothing more’. 

Jerome Frank – law of the modern mind – the key writer in American realist movement. 

American realist movement – they were principally American lawyers, judges and academics writing in first half of 20C (and end 19C) re the nature of law.  one problem with legal analysis was that view that it was quasi logical exercise taking seriously deductive structures they thought took the true nature of law.

If you thought it was just quasi logical exercise, then of course you encouraged to read the CLR’s very intently trying to find ratios and deduce conclusions from them.
Oliver Wendell Holmes – said of the law that it is what judges say it is.  Said law is about predicting what judges will do in the future.  Your client wants to know how their case will be decided – they don’t care about law reports, just whether they will win or lose.  If the best way to predict it was to feed the results of past decisions and come up with some prediction based on case characteristics.  Problem with theory that law is pure deduction then can’t take factors into account.  Lousy predictive device that didn’t properly capture structure of law.

Criticised mechanical jurisprudence that we make these calculations.  Paper rules were the reading of law reports to get your prediction.

The realists had a practitioner oriented view of law – focused on judges deciding cases for lawyer’s perspective.  If you advising your client, how do you make use of the law?

Jerome Frank to arguments of others and took them to the extreme – e.g. said yes they use hunches to reach decision but said the mistake Hutchinson made was thinking law would stop or block some answers because couldn’t structure argument to justify.  He said that’s wrong – you can construct legal argument that complies with laws of logic to justify anything.

Said law isn’t deductive – while have to obey laws of logic, laws of logic don’t tell what content of premise in any argument will be.  Have to apply past ratios but what is the ratio. 

Gave e.g. of Donohue v Stevenson – what’s its ratio?  No one thing – has a number of ratios depending on which aspect you’re looking at.

Frank said well what is law anyway, case isn’t decided by single rule.  In a real case I have multiple laws e.g. re procedure, jurisdiction, time limits, evidence required to win, what inferences may be drawn from certain types of evidence, laws re defences e.g. contributory negligence under CLA etc.  It’s unlikely that any real case is decided without having to appeal to dozens/even hundreds of rules.  Your hunch might be that plaintiff shouldn’t win, but the case is pointing to their winning – how was the case run, does the evidence support the claim, has an element of the law been overlooked. 
Lord Denning – gave the greatest justifications for his hunches – he found strong ground to support claim or develop an exception to what otherwise looked like cast iron.  In his autobiography he criticised the judges that said they ok about judgements they thought were unfair etc.  He then says that the law is a vast body of concepts and ideas and there can always be an argument constructed that will have as its conclusion the result we know will be the outcome of the case.  He said you can always find a legal argument to justify your hunch about what is the fair and just way to find the case.

Denning also spoke about how the common law stood up for the rights of the common man etc – he believed both views at the same time but in reality you can’t in Frank’s mind. 

Consequence of realist movement – that you radically altered your focus on what was legally important – focused on judge as the decision maker rather than Llewellyn’s paper rules.  As result of the movement people took up study of pattern of decision making etc.  Also meant people looked at law in radically different way – no right answer to questions, if didn’t like result ask them to change their way.

Frank – it wasn’t how the law determined outcome of cases (because he thought it didn’t) but asked why people thought the law did so determine it.  in answering this question he felt people were looking for a father figure to tell us what to do and that the law filled that position – i.e. psychological issue – said the law didn’t determine cases, so we have to go out to try to find why people deluded themselves that it did.  He thought a good judge was one that recognised they were the source of the law and made it up as they went along.  He did see the legal system as the system for resolving disputes.  He thought the only guide was the judges’ own sense of justice.  Holmes was one of leading ones of realist movement – he acknowledged that this is what was going on.  Frank wrote an article re Judge Holmes in which he admired Holmes. 
Dworkin’s arguments were essentially against the realists. 

• The key question still remains – is law indeterminate or are there right answers to the questions.

One problem realists pose is that the practitioner advising client is trying to predict what judges will do.

No help if judge says what is the law on this matter?  Can’t say dismissing or accepting the claim because of my own personal views and thoughts on the matter – still need rational reasons that appeal to anyone even handed looking at the judgement that was delivered. 

If judge can construct argument to justify any conclusion they like, how do they go about making the judgement? 

American realism has powerful arguments but poses dilemma. 

• If don’t have determinacy in the law how do we excuse, explain or justify the practice we engage in of the elaborate trial and long legal judgement?