Revisionist Look at the Legal Realists and Formalism, April 4, 2010
By Ronald H. Clark
I happen to be quite fond of revisionist studies (e.g., "Harding was a great president") because they challenge long-held beliefs, cause you to rethink your fundamental ideas, and get the brain cells jumping. This is just such a book. While I disagree with nearly all of the author's central arguments, it nonetheless merits 5 stars due to its superior scholarship, although it does evidence some methodological problems along the way. After a fine initial chapter which summarizes the book's entire arguments, the first section undertakes to refute decades of academic writing that asserted that for much of the 19th and early 20th centuries, judges argued they did not "make" law but instead simply mechanically derived the answers to legal questions by logical analysis from established principles. In this analysis of "legal formalism," the author's principal targets are folks like Jerome Frank, Grant Gilmore, and Roscoe Pound. Therefore, the author contends, the assertion that the legal realists of the 1920's and 1930's uncovered the truth about judicial decisions, and stripped away layers of obfuscation, to reveal the truth, is a distortion. Rather, the author asserts, everybody recognized that judges were influenced by external factors and not controlled by logic. As we all recall, Holmes asserted as early as 1881 that "the life of the law has not been logic; it has been experience."
Part Two focuses upon the legal realists themselves and argues largely that the so called discoveries of the legal realists as to how judges made decisions had been widely recognized for decades before their appearance. Particularly is this true in connection with the historical school of jurisprudence. Even some of the realists themselves realized that much of what was associated with realism's critique of judging was "old hat." The third section of the book looks at "studies of judges." This is where my brain cells started to pop; in the interests of full disclosure I must fess up to having taken a Ph.D. in this area in 1970, although I stopped "professing" in 1977. The author, I think, does not appreciate what these largely statistical quantitative studies are setting out to accomplish. Rather, he generally just writes them off as misguided, apparently because he thinks (mistakenly in my opinion) that these authors are just latter-day legal realists. Moreover, he ignores that the field of judicial behavior is much richer and broader than the single facet he concentrates upon.
I found the final section of the book to be the best and quite outstanding. Here the author discusses his theory of "balanced realism," looks at some theoretical writing on the role of "rules" (Schauer and R. Kennedy in particular, with some H.L.A. Hart thrown in), and raises the very vital issue of do we want judges to make decisions straitjacketed by rules, or do we want them to have some flexibility to adapt the rules to enhance the legal system? Included are remarks on Judge Posner's legal pragmatic approach versus that of Ronald Dworkin. These are important issues and the author does a fine job of raising and discussing them. The real danger that lies in these issues, the author believes, is that the public will become excessively skeptical about judging, which would undermine the entire system.
Anyone interested in American legal thought generally, and legal formalism and the realists in particular, will find this book must reading. The author's research is impeccable, and 47 pages of notes attest to his thorough command of the literature and the issues (plaudits to "Hein on Line" appear in order). I think the author engages in some unfortunate techniques, such as taking a quote from one individual and arguing others agreed with it; he tends to jump around and juxtapose quotes from different time frames; there is undue reliance on two few indiviuals; one wonders how "reresentative" the quotes he cites really are; and on occasion he engages in vast speculation about judges without any empirical evidence to back him up. Nonetheless, this is a fine book: it stimulates, challenges, enhances the reader's familiarity with the pertinent literature, and raises some vital theoretical issues. So, those of you who believe, as do I, that the realists were a pretty important group of folks in American legal thought, should grit your teeth and jump on the author's roller coaster--the ride is worth the pain! Help other customers find the most helpful reviews
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Initial post: Apr. 23, 2010 1:08 PM PDT
Omer Belsky says:
Great Review. I'm not sure however, that it is fair to the realists. Almost everyone who thinks about it realizes that Judges make up the law. But the pretense is that they are not supposed to. The realist insight (one that was seen by Holmes first, but Holmes held it inconsistently), is that creating law is what Judges are supposed to do.
This is still a revolutionary way of looking on Judging. The ideas that we have to start with Judges as creators of the law when thinking about Jurisprudence is still very far from the perception of the role of the Judge, even inside law schools, let alone in the general public.
Regards
Omer
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In reply to an earlier post on Apr. 28, 2010 10:09 AM PDT
Ronald H. Clark says:
Omer:
I agree with your comments and insights as usual. I finally found that judicial bio I wanted to ask you about of an Israeli judge. It came highly recommended to me by Prof. Laura Kalman who teaches at the U. of California, Santa Barbara, and has written some outstanding books, including the definitive bio of Abe Fortas. Santa Barbara is where I got my Ph.D. in 1970, several decades before Laura joined the faculty. The book may even be one you recommended to me: Pnina Lahav, Judgment in Jerusalem about Chief Judge Simon Agranat. I still have not had a chance to read it but plan to do so shortly. You have any thoughts on the book?
My wife and I are off shortly to Turkey--our first visit to that area of the world so I am looking forward to learning many new things. Ron
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In reply to an earlier post on Apr. 28, 2010 11:39 AM PDT
Omer Belsky says:
Dear Ron
I've skimmed through the beginning of "Judgement in Jerusalem", and it seemed agreeable enough, but somehow I never got around to read it all.
Agranat had a large influence in Israeli Jurisprudence, but Israeli legal culture does not pay as much attention to individuals as the American tradition. Although I think this is changing, with Aharon Barak especially.
So if you read it and like it, let me know what you think.
Have fun in Turkey - although in future I think you should try to get to our corner of the world when it's not as hot. I've got one or two good tips about Istanbul, if you're interested.
Regards
Omer
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In reply to an earlier post on Apr. 29, 2010 8:18 PM PDT
Ronald H. Clark says:
Omer:
Thanks for info on the Agranat book. Any tips on Istanbul would be much appreciated. Ron.
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In reply to an earlier post on Dec. 14, 2010 12:15 PM PST
Kevin R. C. Gutzman says:
I much prefer Bruce Murphy's Fortas: The Rise & Ruin of a Supreme Court Justice to Kalman's book. It is far less worshipful, and significantly more detailed in regard to the scandal that brought Fortas down. Kalman is particularly enthralled with the Yale Law School clique of which Fortas was a part, as her later writing would make even more evident, while Murphy has insightful things to say about the connection between Fortas and Lyndon Johnson.
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In reply to an earlier post on Dec. 15, 2010 7:01 AM PST
Last edited by the author 12 hours ago
Ronald H. Clark says:
Dear Professor Gutzman:
Thanks for the comment. My only problem with Bruce Alan Murphy's books on the Court is that he seems to seek out the sensational, to the exclusion of the substantive on occasion. For example, his book on Douglas ("Wild Bill") pretty much focuses upon WOD as being mean to clerks, chasing women, and being dominated by political ambitions. All true, but is that the reason for WOD's prominence? Douglas was clearly a "great justice," though how great is open to discussion. Similarly, BAM's initial book on "The Brandeis-Frankfurter Connection" set off a lot of sensationalist press discussion, since he focused upon LDB while a justice subsidizing FF's political/propaganda activities. But is that all there was to their relationship?; take a look at Urofsky's recent king-sized bio of LDB and his earlier book "Like Father, Like Son" which contains their correpondence. As to Fortas, the very title highlights the problem: "The Rise and Fall of a Supreme Court Justice." There was much more to Fortas than what brought him down.
Actually, BAM's books are good, solid scholarship...but his lust for the sensational impairs their value to an extent in my opinion. As it turns out, the retired President of Lafayette College where he teaches lives across the hall from me in DC and we have discussed Murphy a bit. He [also a lawyer] is unstinting in his praise of BAM both as a teacher and student of the Court. I hope he writes something more on the Court.
No question that Laura Kalman is closely tied to Yale: she took her Ph.D. there; her dissertation on "Legal Realism at Yale" was her first book; her "Yale Law School in the Sixties" continued her connection; and the Fortas book was published by Yale as its lead book for the year. Setting aside BAM's approach to Abe, I just think Kalman's book is superior. Fortas' incubation at YLS in the 1930's was crucial to his later development in the New Deal and his practice at Arnold, Fortas, and Porter. Kalman was able (unlike BAM if I recall correctly--I am in NY so away from my books) interviewed Fortas and was able to develop more fully his YLS period. She certainly deals with the two Fortas scandals, and is not whitewashing him, but her more "balanced" approach yields a better understanding of Fortas.
Perhaps the difference between the two lies in the fact that BAM is a political scientist (like I used to be) and Kalman is an historian who sees her responsibility as being to lay out the facts. I have spoken with Kalman a couple of times, since she teaches where I took my Ph.D. many years before she came, and I think she is one of the leading legal historians we have at the present. This is certaintly demonstrated in her trading shots with the beloved UVA group [Ted White et al.] that thinks the New Deal was horrid and the Court correct in lacerating it.
Sorry to be so long winded--once a prof always a prof. I want to take a look at some of your work, it looks quite interesting. Ron.
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In reply to an earlier post on Dec. 15, 2010 7:50 AM PST
Last edited by the author 11 hours ago
Kevin R. C. Gutzman says:
Ron,
I think we'll have to agree to disagree here.
If I recall -- and it has been 20 years since I read it --, her Fortas tome was adoring, both of the late justice and of his wife. I think it was the widow who cooperated in the book project, at least in its final phases. I also think that Kalman greatly overrates the lasting significance of the whole Yale coterie.
As to Douglas, it seems to me that you've exaggerated his significance. He was notorious in his lifetime, but what are the landmark precedents that he established? You might think that a nakedly results-oriented justice's work was bound to have ephemeral significance, but Brennan's work still stands, modified but dominant, across the broad sweep of the Court's work. As to Douglas, on the other hand, what come to mind for me are his quarrel with Black and his idea that trees ought to have standing. The latter, widely mocked, is actually emblematic of his severe mental deterioration in his final years; in fact, my Professional Report advisor at the LBJ School (where I got my first master's) was Dagmar Hamilton, Douglas's former ghostwriter, Nixon impeachment House Judiciary staffer, and the wife of a former WOD clerk, and she said that he was certainly senile at the end. (There is of course more on that subject in _The Brethren_ and elsewhere.)
It may be that I am less prone to dub someone "great" than others are. In the 20th century, it seems to me, the great justices were Brandeis, Warren, Brennan, and Rehnquist. I wouldn't even put Douglas in the next tier.
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