Rethinking Legal Realism: Toward a Naturalized Jurisprudence

I. Introduction Considering the enormous influence Legal Realism has exercised upon American law and legal education over the last sixty years, and considering, too, as the cliche has it, that "we are all realists now," it remains surprising how inadequate-indeed inaccurate-most descriptions of Realism turn out to be. Ronald Dworkin, for example, claims that according to Realism, "judges actually decide cases according to their own political or moral tastes, and then choose an appropriate legal rule as a rationalization."1 Dworkin is echoed by Judge Jon Newman of the Second Circuit who asserts that Realists believe that "the judge simply selects the result that best comports with personal values and then enlists, sometimes brutally, whatever doctrines arguably support the result."2 John Hart Ely says the Realists "'discovered' that judges were human and therefore were likely in a variety of legal contexts consciously or unconsciously to slip their personal values into their legal reasoning. "3 Steven Burton remarks that it is often "claimed, in legal realist fashion, that judges decide whatever they want to decide when the law is unclear (and it is often or always unclear)."4 Fred Schauer describes Realists as holding "that legal decision-makers are largely unconstrained by forces external to their own decision-making preferences. "5 And Robert Satter, a Connecticut trial judge, says in a recent popular work that Realists "assert that a judge exercises unbridled discretion in making decisions; he works backward from conclusion to principles and uses principles only to rationalize his conclusions. [Realists] consider the judge's values all-important. "6 Glosses on Realism like these are surely familiar to every student of the literature. But it may help to recast them in a slightly more systematic form to understand precisely what picture of Realism so powerfully grips the legal imagination. According to what I will call the "Received View," Legal Realism is fundamentally: (1) a descriptive theory about the nature of judicial decision, according to which, (2) judges exercise unfettered discretion, in order (3) to reach results based on their personal tastes and values, which (4) they then rationalize after-the-fact with appropriate legal rules and reasons. Like much "conventional wisdom," the Received View of Realism has an element of truth: the core of Realism is, indeed, a certain sort of descriptive claim about how judges decide cases, according to which judges rationalize, after the fact, decisions reached on other grounds. But it is, or so I shall argue, quite misleading to think of Realism as committed to the claim that judges exercise "unfettered" discretion7 or that they make choices based on "personal" values and tastes. That Realism has been saddled with these claims-what I shall call the claims of "Judicial Volition" and "Judicial Idiosyncrasy"-has contributed in no small measure to the frequent reduction of Realism to a whipping boy for legal common sense.8 As a preliminary matter, however, any talk about the core of "Realism"-or even of "Realism" simpliciter-invites the objection that there simply is no such thing: there is no doctrine of "Realism" as apart from the views of individual writers.9 This sort of familiar skepticism is, I think, largely false. For everyone commonly thought to be a RealistKarl Llewellyn, Jerome Frank, Underhill Moore, Felix Cohen, Leon Green, Herman Oliphant, Walter Wheeler Cook, and Max Radin, among others-endorses the following descriptive claim about adjudication: in deciding cases, judges respond primarily to the stimulus of the facts. The Received View can then be seen as simply one interpretation of certain aspects of what I shall call this "Core Claim" of Realism, to which I return below.10 Indeed, I will suggest something further: that the misleading presentation of the Received View as the essence of Realism really represents what we may call the "Frankification" of Realism, i. …