Legal Realism & Scepticism

(Class #7)
 Readings
Class #7 (M 9/26)

Holmes, The Path of the Law [141-147]

Frank, Legal Realism [147-50]
Llewellyn, Ships and Shoes and Sealing Wax [150-158]

Fuller, The Case of the Speluncean Explorers [36-52]

 Next Topic & Readings
Legal Interpretation

Class #8 (W 9/28)
Dworkin, Integrity in Law [158-174]

Class #9 (M 10/3)
Scalia, Common-Law Courts in a Civil-Law System [175-184]
Dworkin, Comment [185-190]
Scalia, Response to Dworkin [190-193]

Class #10 (W 10/5)

Lawrence v. Texas (SCt) [Canvas]
Midterm Paper Assignment distributed
 Legal Realism

a distinctively American criticism. of the

judicial process.The most skeptical of these
critics the loosely named
Realists.opened mens eyes to what
actually goes on when courts decide cases

-H.L.A. Hart

(1897)
 The Predictive Theory of Law

what is law?

when we study lawthe object of our study is prediction

i.e. a prediction re: what a court will decide to do given a particular set of facts

in particular whether (& to what extent) the court will exert the public force and the
whole power of the state vs. one of the parties to the dispute
 The Predictive Theory of Law

so the prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law

but -- what are the means of our study? how do we make these predictions?

lawyers rely on empirical data the whole extant body of statutes, case law (the reports of
previous judicial decisions & opinions), treatises

lawyers try to generalize all this data into a thoroughly connected system in order to
make these prophecies more precise

much like economics, psychology & other social sciences

 Law & Morality
the law is full of phraseology drawn from morals e.g., the language of rights-
duties obligations

this shared vocabulary makes it easy to pass from one domain to the other it is
common in legal reasoning to take these [legal] words in their moral sense

but this is a fallacy nothing but confusion of thought can result from assuming that
the rights of man in a moral sense are equally rights in the sense of the Constitution and
the law

we should gain very much in the clearness of our thoughtif every word of moral
significance could be banished from the law altogether and replaced with some purely
legal term
more.
 Law & Morality
to determine what the law is, we should take the point of view of the bad man

i.e., the p/o/v of a man who cares nothing being moral or ethical

all he wants to know is whether & what consequences will result from his doing or not doing
certain acts so he can plan his conduct accordingly to stay within the law & avoid being
sanctioned

the bad mans idea of a legal duty is correct it is nothing but a prediction that if a man
does or omits certain things he will be made to suffer in this or that way by judgment of the
court

thus -- we wash [the notion of duty] with cynical acid to see what it really means
 Law & Logic

the formalist paradigm views the law as a closed deductive system

i.e., - every judicial decision is rationally-determined -- the court applies a determinate

legal rule to a given set of facts to reach a necessary conclusion

but the idea that logic is the only force at work in the development of the law is
another fallacy

in reality the very root & nerve of every judicial decision is the belief or opinion of
the court towards the matter at hand the attitude the court takes towards the political,
economic, political & social aspects of the case

every judicial decision embodies the preferences of a given body in a given time & Place
(1930)
 A Rough Definition of the Law
what is the law? -- from the p/o/v of the average man a person facing a particular set of
facts

with respect to any given situation the law is either

[a] actual law, i.e., a specific past decision, as to that situation

or

[b] probable law, i.e., a guess as to a specific future decision

the average man only cares about the latter --but what are the grounds for making these
guesses / predictions / prophecies about what the court will decide given this particular set of
facts?
(1951)
 The Doctrine of Precedent
the doctrine of stare decisis lets us predict what courts will decide in a particular case

the doctrine of precedent = the rule laid down by the court in a previous case should
control the outcome of all subsequent cases with similar relevant facts

courts accept stare decisis as authoritative and binding as controlling the deliberative
process

so, in theory prediction (what the court will decide in the future) is based on precedent
(what the court decided in the past) given similar relevant facts

but, in reality how the court will in fact rule depends more on the judges attitude than
on prior precedent ..
 Ambiguity
the judges attitude is more important than prior precedent for purposes of prediction
b/c the law is indeterminate

i.e., every single precedent.is ambiguous

b/c rules are general whereas -- judicial disputes involve particular facts

so -- judicial decision-making involves puttingfacts into those legal abstract categories

which are the terms of legal rules

e.g., No Vehicles in the Park is the rule -- but what shall we do with a scooter?
 This Is a Pragmatic World
judges can & do classify the facts in wide or narrow & weak and strong ways

this latitude lets them interpret the rules laid down in prior cases as they see fit

but -- they are expected to write & publish opinions explaining the rationale for their
decisions and this public scrutiny serves as the check and limits on their discretion

so -- the lawyer / advocates job is persuasion presenting the facts in a way designed to
induce [in the court] the attitude toward the result your client desires

i.e., -- try to get the court to classify the relevant facts in a way that lets you win because
then the facts are either inside or outside the controlling rule as you prefer