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Sunday, December 23, 2012

Why I Am Not a Legal Realist

ImagesI had a dialogue with a friend and colleague a couple months ago in connection with the pedagogy of first year contract law.   The question revolved around students' attempts to understand the doctrine, say as capsuled in the Restatement, as something integrated and coherent.  For example, is it helpful for a student to have a relatively abstract understanding of what makes something a contract, given the vagaries of the doctrines of consideration, promissory estoppel, promissory Llewellyn restitution, etc.?

At the time I responded as follows:

I tend not to get so hung up on taxonomies and terminologies.
In other words, how the universe of enforceable private obligations gets classified into subsets and then “named” is less important to me than the actual rules (algorithms) into which real world stories get translated for the purpose of arguing for or against or adjudging the existence of a legal obligation that arises out of a promise.
So “enforceability” cases arise when one of the parties contends that whatever legal rule turns a gratuitous promise into a binding one either applies or doesn’t for the purpose of enforcing or avoiding an obligation. “Formation” cases arise when it’s to the advantage of one side or the other to claim a bargain was or was not formed.
The groupings of cases and doctrine into casebook categories and chapters is an academic one, and “scientific” in the Langdellian sense of trying to make all the doctrine “fit” as though there really were a physics like world in which the concepts, rules, and algorithms existed on their own.
I would tell the student not to worry so much about the definitions. Or look to R2K §1 as the definition of a contract - the delightfully tautological notion that a contract is a promise or set of promises for the breach of which the law gives a remedy or otherwise imposes a duty. Under that definition, a promise enforceable under R2K §90(1) (otherwise referred to as promissory estoppel) is a contract, but who gives a ****?

The question he raised was whether it made sense to give students some formal structure by which to organize the doctrine, as opposed to teaching something that sounded more of "legal realism."

Having thought about it, and to the extent these categories are meaningful, I can now say why I’m not a “realist” and am instead probably something like a "constructivist."  For those who need a soporific, the brain-numbing explanation follows the break. 

I regularly see the following when grading 1L contracts exams.  Invariably, regardless of the particular construct of a large issue-spotting question, the majority of students understand the implicit question to be something abstract (or disconnected from context, if that's different) like "was there a contract?"  If that's how you frame the response to the problem, it certainly makes sense to proffer, as your first "Rule" in an IRAC approach, the definition of a contract.

Moreover, this is usually preliminary to an assessment whether, first, there was a promise and, second, whether there was consideration for the promise.  This, if well done, is less abstract because it requires engagement with the facts, but it still starts from an abstract frame of reference.

That's certainly one way to go about it, and it very often suffices for a pretty decent grade.  

But it's not the way I teach approaching a lawyer's problem.  It puts law before context, and I believe law, at least from a law student's perspective, is meaningless without context.

I try to get students to go about this differently, and as experienced lawyers do:  first identifying what the claimant wants as a non-legal matter and only then positing the legal theories supporting the claim and the defenses to the claim.

There’s a subtle analytical difference. If I launch immediately into a conceptual analysis of contract law, starting quite understandably from the definition of “contract” in R2K §1 and moving to the definition of “promise” in R2K §2, I very possibly miss all but the most obvious issues.  Indeed, in my experience, it turns out that the definition of “contract” in R2K §1 rarely makes a difference to the most effective legal theories of claim and defense (it doesn't hurt to talk about it, but it's only an opening flourish).

No, it seems the right way to organize one’s thinking is not around the coherence of the set of rules that constitute contract law (as embodied in, say, the Restatement 2d), but around the legal theories lawyers construct – using the rules within the Restatement – for purposes of attack and defense.  (I always do a lecture early in the semester demonstrating how these "theories" turn into the "counts" of a complaint.)

I understand this sounds like legal realism.  Larry Solum just featured as his "Download of the Week" an otherwise highly theoretical piece on legal realism by Nicholas Barber (Oxford).  Barber takes on what he calls the "thankless" task of trying to describe what "legal realism" means.  My friend could be correct in placing me with those "realists," like Stewart Macaulay, who try to "focus on the impact that law has on the community that it addresses."  That's fair.  As I have told Professor Macaulay, often my most difficult challenge is explaining why I think what I'm saying is different than what first he said fifty years ago!

Or it could be, given that I'm not talking here about ongoing relationships but the argumentation and adjudication of legal disputes, that I am espousing some of the Core Claims of the realism that, per Barber, is "attentive to the gap between the law's aspirations and the reality of the rules that guide power":  (per Leiter)  (a) "that in deciding cases, judges are reacting to the underlying facts of the case, whether or not those facts are legally significant, i.e., whether or not they are relevant in virtue of the applicable legal rules"; (b) "that [legal rules and reasons] generally have no (or little) effect [on the course of decision], especially in . . . that class of more difficult cases that reached the stage of appellate review"; and (c) while there may be some causal connection between legal rules and reasons, on one hand, and decisions, on the other, "Realists deny that 'traditional . . . rule-formations are the heavily operative factor in producing court decisions."

Great movements in art and thought are often a response to the failures or inadequacies or restrictions of an earlier movement.  Historically, the variants of legal realism are no different.  It simply defies common experience of individual or judicial decision-making to suggest, for example, that a traditional rule formulation of "separate but equal" versus my moral outrage at racial segregation would be the source of my decision in a case like Brown.  And it defies commercial experience to suggest that most of what we teach in the doctrine of contract law (whether emanating from the perspective of a Williston (pictured, above left) or a Llewellyn, pictured above right)) has much in common with the business of doing transactions.

Continuing in this intellectual tradition, the thesis of Barber's piece is to offer a critique of Dworkinian responses to legal realism and legal pluralism.  Barber views both realism and pluralism as "set against the non-positivist [i.e. Dworkinian] account of law, an account that ties law tightly to the moral considerations that ought to guide judges."  The essence of this latter account is that "law is mind-independent: its content is not determined by institutions or individuals, but, rather by what morality demands of us."

But I don't teach courses that dealt in subjects to which students generally bring well-developed moral intuitions, or in which those intuitions clearly direct one to a result.  Instead, the opinions and dissents often seem equally persuasive.  The first case I read in law school was Groves v. John Wunder Co.  The defendant failed to grade a piece of commercial property to the specifications in the contract.  The cost of completing the grading was $60,000 but the property was only worth $12,000 even if graded correctly. Should the damages be the cost of completion (which gives a windfall to the plaintiff) or the difference in value (which gives a windfall to the defendant)?  

Yeah, I guess there's a moral component (breacher versus non-breacher), but even one of the great realists (Holmes) said that shouldn't matter.  I mean, c'mon, does anybody really care?

When I decline to call myself a realist, what I'm really saying is that, philosophically, I'm closer to a form of what is classified (!) as constructivism, here described nicely by Carla Bagnoli in the Stanford Encyclopedia of Philosophy.

One attempt to distinguish constructivism from both realism and anti-realism appeals to the function of concepts (Korsgaard 2003). Korsgaard points to an assumption she believes that realists and antirealists share and that constructivists reject, namely, that the primary function of concepts deployed in judgments that can be true or false is to represent things as they are, so if normative judgments are true, they must represent something real out there in the world. By contrast, constructivists think that normative concepts, which are deployed in judgments that can be true or false, have a practical function: they name solutions to practical problems, rather than represent features of reality (Korsgaard 2008, 302 ff.). For instance, the concept of equity does not stand for a property; instead, it proposes a response to the practical problem of how to distribute goods. Korsgaard draws the contrast between constructivism and other metaethical theories as follows. Unlike substantive realism, which holds that moral judgments are true insofar as they represent a mind-independent normative reality, and antirealism, which denies that there are normative truths because it denies that there are normative properties, constructivists hold that practical judgments can be true or false without representing mind-independent normative facts about the world (Korsgaard 2003, 325 n. 49).

My view is that meaning is something we always construct in context.  Neither my friend or my students are wrong in trying to find meaning (read: coherent explanation) of the rules as a formal system.   I organized an entire symposium around the theoretical underpinnings of contract law!  And even as a practical matter, the appeal of formalism over contextualism in contract disputes, it seems to me, is not that there's an immanently correct answer but that it's just simpler to get to an answer from the judge's standpoint.

What I share with realists is a skeptical view of the law as a mind-independent reality.  At least in the quotidian world where I teach students to do what I did for so long as a working lawyer, I don't see the search for immanent truth embodied in abstract questions like "what is a contract" as particularly helpful. Rather, the algorithms of the Restatement 2d and Article 2 of the UCC are practical models for resolving disputes without resort to violence, whether or not they manage to cohere in themselves.  

So without a compelling moral intuition as the basis for a "realist" approach to things like "gift or bargain," "covenant or condition," and "exclude parol evidence or not", what are we left with?  Only the internal coherence of the model and our intuitions, not so much morally as epistemologically - in the sense of making sense - with respect to the facts in dispute.  

Here's an example.  A newspaper wants to run an important political exposé.  The credibility of the story depends on the credibility of the source.  The editor decides the story requires identification of the source and overrides a reporter's promise to the source that the paper will withhold his identity.  The source sues the newspaper for damages he suffers as a consequence (losing his job, etc.).   We know what a prototypical enforceable commercial bargain looks like, and we know what a prototype gift or gratuitous promise looks like.  Where does this one fall?

There are an array of  rule formulations from which to choose, from "contract = promise + bargained for consideration" to "promissory estoppel = promise + justified reliance + avoidance of injustice" to "gratuity = promise + mere condition of performance".  There are colorable if not persuasive consequentialist moral arguments on both sides.  My students know that to ask me for the correct answer is to get an "I don't know."

Nevertheless, I don't believe that "realism" explain these cases very well.  A die-hard realist might well suggest that there's no mind-independent reality whatsoever that determines the answer.  What I'm saying instead is that, individually and collectively, our minds construct a reality in which, absent overwhelming moral considerations, internal coherence of the doctrine itself is part of the sense-making we use to explain and to advocate.

That's not formalism, and it's not legal realism, at least as others have struggled to describe it.

Posted by Jeff Lipshaw on December 23, 2012 at 03:20 PM | Permalink


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Maybe I'm wrong, but it sounds like you're saying that you approach contract law from the perspective of an advocate and not a judge. That is, you focus on what clients want and what arguments lawyers can make, not how judges would or should resolve competing claims from advocates on opposing sides.

Posted by: Orin Kerr | Dec 23, 2012 5:07:28 PM

Orin, that's fair. I suspect I do spend a lot more time asking student to operate from the point of view of an advocate rather than a judge. Far more of them will be advocates than judges.

But to advocate, you have to have some sense of what appeals to a judge. So I do have a thesis about judges as well as the observers I refer to in class as "student-scholars" (namely, US), at least as to these mundane issues. Remember, we're talking about consideration and offer/acceptance, not torture or invasion of privacy. In that milieu, at least, our human need to make sense of the world coherently operates alongside our desire to be just. (Maybe for some coherence is justice, but that's another topic.) So where multiple rules are capable of being the rule of decision, it's the advocate's job to demonstrate that the rule that maintains doctrinal coherence the best also happens to be the rule that benefits the client's cause. (Karl Llewellyn, a Realist, said it almost exactly that way in The Bramble Bush!) Because indeed I think judges (as a subset of all sense-making human beings) respond to it. As a "scholar-student," I think I do.

That's not being a realist as to decision-making (it seems to me) in the way others describe legal justification as the tail of the dog, judicially speaking. But I also don't think there are immanent "correct" justification in the Dworkinian "fit and justification" mode, even though I do think "fit and justification" make a difference in how decision-makers decide.

I'm speaking generally, of course. I am a realist about making arguments to particular judges, if I know something about their inclinations. But it can be hard to get a read on whether a judge is a big fan of a restrictive view of parol evidence, thinks promissory estoppel should or should not apply in commercial situations, or has a view on whether the contractually agreed remedy is an enforceable liquidated damages clause or a penalty. Not something that stirs the passions in most people.

Posted by: Jeff Lipshaw | Dec 23, 2012 5:44:31 PM

Correction: "I don't think there are immanent "correct" answers..."

Posted by: Jeff Lipshaw | Dec 23, 2012 5:46:24 PM

Jeff: Two quick comments, the first following Orin's. It sounds to me like you're approaching contracts (correctly, I think) from a transactional attorney's perspective as opposed to a litigator's. I don't mean these as essential categories -- an effective litigator will always look at what's best for a client, which often includes settlement, and a transactional attorney will try to avoid litigation while keeping it handy as a negotiating tool both before and after formation. But I wonder to what extent that distinction drives your willingness to distinguish yourself from what you see as more formal, judge-centered and jurisprudential theories.

Second, there was not and still is not a single "legal realism," except as it is constructed by those who want to make an argument about contemporary legal theory or to advance particular ends. Llewellyn started the trend of finding coherence and singularity where it didn't exist; it has continued for critics and proponents ever since. (Full disclosure: this is a current, still-nascent research project of mine, so I have something of an axe to grind here.) Many of those associated with or later grouped with realism would find themselves and their work quite ill at ease with the way the movement is portrayed now, and were even back in Llewellyn's day. This is not to say that the many reconstructions of legal realism are wrong, per se -- just that their understanding of it as a "school" or historical phenomenon is more likely to reflect current concerns and debates than some essential historical truth about what has come to be viewed as American legal theory's great modernist moment. In that regard, I don't know if there ever were (other than Llewellyn at his most pedantic) any "die-hard" realists who have anything of interest to say, or if there are today. I would imagine many who would claim to be influenced by "legal realism" would agree with what you describe as your approach (though perhaps I'm not quite grasping it), particularly as regards to transactional law.

Posted by: Mark Fenster | Dec 23, 2012 6:11:20 PM

Mark, thanks. That's an interesting observation. Let me ponder it a moment.

I've been both a litigator and a transactional lawyer, as well as a producer of legal services, a seller of legal services, and most influentially, a buyer of legal services (close to thirteen years as a GC). I have a nuanced, some might say jaundiced, view of the value lawyers have been trained to think they are adding, whether as litigators OR transactional lawyers.

On the other hand, I've not been a lawyer for the ACLU or the NAACP, just to name a couple organizations that have advocated causes with which I agree, and as to which causes lawyers and judges do seem to be far less worthy of my jaundiced view of their relative importance to the world.

It would take longer than a blog comment (and indeed it's the subject of much - if not most - of my writing) to do this correctly - but in essence, I think there's a far weaker relationship between what transactional lawyers do in writing contracts before the fact and what happens in litigation after the fact than either transactional lawyers or litigators would like to believe. Hence, it's one thing to believe, as a judge, that your decisions in, say, privacy or abortion rights or corporate speech reflect a normative truth (I'm a skeptic about most normative truths, but that would be a digression), and another to believe that your decisions reflect a descriptive truth as to "mutual intention of the parties," whether it's about the meaning of a term, whether the transaction was meant to binding or gratuitous, whether there was mutual assent to form a contract, etc.

In other words, the parties supposedly create the law such as it is, and the judicial decision-making exercise is an odd combination of descriptive inquiry and normative assessment of that law such as it is. (I've written about this extensively in the Metaphors, Models, and Meaning article.)

So I suppose that would be a factor in driving the distinction you are suggesting, and which seems like it's onto something.

Also, you are of course right about there being no single "legal realism", and that's part of what Barber describes. My friend was suggesting that my approach was "realist" as opposed to something more "formal," and that's what I was responding to.

Posted by: Jeff Lipshaw | Dec 23, 2012 6:42:39 PM

Off-the-cuff-musing-sort-of-remark: what you describe here, Jeff, could also be labeled an "ideology." Couldt a Marxist-tinged legal realist accept all you say and still give the law that label?

Posted by: Paul Gowder | Dec 23, 2012 7:38:34 PM

The meaning of the term "realism" in the phrase "legal realism" is virtually the opposite of the meaning of the term "realism" when that term is contrasted with "constructivism". The latter use of the term occurs in the phrases "moral realism" and "metaphysical realism" and "semantic realism", but, for better or for worse, the phrase "legal realism -- as it gained currency in the 1920s and 1930s -- incorporates a very different sense of the term (a sense closer to the everyday use of the term to denote an attitude of hard-headed pragmatism bordering on cynicism).

Posted by: Matthew Kramer | Dec 24, 2012 12:24:18 PM

Like Matthew Kramer, I was going to note that "constructivism", as discussed by Korsgaard in the bit quoted, really have nothing to do with "realism" in the sense of "legal realism", and that "legal realism", if you want to align it with a view in meta-ethics at all, is closer to anti-realism. But, I'd also say that there's no necessary connection between legal realism and any view in meta-ethics at all. It's probably better to just keep these issues apart, unless one wants to be much more careful about the connections.

But, I was surprised by the claim that your students don't have pre-theoretical moral intuitions about contracts. Of course, it's hard to have clear intuitions about hard cases- that's what makes them hard, after all- but I'd find it very surprising if most students didn't have fairly strong intuitions about contracts that were pretty close to the "moralized" view of contracts that Fried and others put forth. Does that really seem wrong?

Posted by: Matt | Dec 24, 2012 2:51:08 PM

Thanks to the professional philosophers for the terminological clarification. Indeed "realism" in law and meta ethics refer to almost opposite orientations to things noumenal. But that was really my point. I think students have less of moral intuition about the details of contract law than an epistemological intuition that the doctrine has a metaphysical reality (hence "realist" in the sense the Matthews note).

That's a view I try to counter - i.e. the coherence of the doctrine, if any, is a reflection of our own mental constructs and not a mind-independent reality. But I resist the idea I'm a legal realist in doing so (acknowledging the difficulty of saying precisely what the latter is).

Posted by: Jeff Lipshaw | Dec 24, 2012 5:24:12 PM

Matt, as to the moral intuitions. I suspect they have the usual moral feelings about promises. It doesn't usually take us too long to persuade them that not all promises deserve to be enforced as contracts.

Posted by: Jeff Lipshaw | Dec 24, 2012 5:33:02 PM

I entered the two comments above from my iPhone in the lobby of the ski lodge last night.

As I recall, Dennis Patterson does a nice job of aligning moral and epistemological realism and anti-realism with their jurisprudential equivalents in the first couple chapters of his Law & Truth.

Posted by: Jeff Lipshaw | Dec 25, 2012 5:26:52 PM

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