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Tuesday, September 23, 2008

Are Students Legal Realists?

We are one month or so into classes and I'm worried that my 1Ls have concluded that judges' opinions are determined by what they had for breakfast.  (Bell Atlantic's re-reading of Conley v. Gibson first pushed them this way.)  Putting aside the concerns that this badly mischaracterizes legal realism, my sense is that this attitude towards judicial decisionmaking gives them an excuse to throw up their hands and refuse to wrestle with lines of cases.  I do think it is a good lesson that judging involves the exercise of "judgment" and that reasonable minds may differ on many litigated issues.  But I also think that it is at least plausible that judges' decisions are limited by institutional constraints, the constraints of having to construct a legal argument that is not laughable, and/or educational norms.  I think it also ignores differences among the courts (e.g., district court vs. the Supreme Court) and among subjects (e.g., constitutional law vs. almost anything else).  One of my colleagues responded by pointing to Bush v. Gore, which is difficult to argue with, but I still don't want my students to start there; this early notion of legal realism is too much like a free pass.

Posted by Verity Winship on September 23, 2008 at 10:08 AM in Legal Theory, Teaching Law | Permalink


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As a current student, I see a lot of this, and I think the selection of cases has a lot to do with it, and not just because they tend to be Supreme Court cases. The cases we read tend to be sexy cases about hot-button issues. This kid of case is actually in the minority, with maybe one or two "interesting" cases per term, if that, with most of the rest turning on fairly dry doctrinal issues which don't make for nearly as fun classroom discussion. For every Heller, there are a dozen cases interpreting the FRCP, or the Federal Tort Claims Act, or tax cases. But you wouldn't know it if all you had were the rather sensational cases you see in Con Law I or Criminal Law.

The death penalty is a controversial issue. Speeding tickets and DUI's aren't. There are far more of the latter than the former, and likewise far more cases asking whether the parties have crossed their t's and dotted their i's than there are with political issues. Even on the appellate level, judges spend far more time on utterly routine matters than anything which would even allow more philosophical ruminations. Even the most radically "liberal" and radically "conservative" judges will still come to exactly the same conclusion the vast majority of the time, because the vast majority of cases are, well, kind of boring.

I agree with Hillel Levin: Throwing up one's hands is intellectually lazy, even if one ultimately reaches the conclusion that yes, the Justices really are making this up. But the number of cases in which there is even an opportunity to make a ruling based on ones gut is far smaller than the standard 1L cases would lead one to believe.

Posted by: Ryan Davidson | Sep 24, 2008 10:29:11 AM

I may be in the minority here, but I have to say I've never really seen this as too much of a problem. Coming to law teaching from the world of social science, I see the court as a sociopolitical construct myself. This is particularly true in criminal procedure, a subject in which the contrast between the Warren court and subsequent courts is obviously directly linked to the political regimes that inspired law enforcement approaches. I see no need to hide this dimension of the analysis from thinking adults, who have grown up in this country, have keen political awareness, and can see this for themselves. If anything, it encourages me to see that they have not been entirely reprogrammed by the "thinking like a lawyer paradigm".

My concerns, however, are twofold:

(1) Legal realism has to be intelligently defended. When someone tells me that the judge's verdict was influenced by what they ate for breakfast (this, by the way, almost never happens), I worry, because I see no thinking happening at all. I even worry sometimes when people reduce the controversies to a simple conservative-versus-liberal debate. But if someone provides some more nuanced social context that might explain the verdict, or the divisions, I'm a much happier camper.

(2) A lot of what we teach in black letter law classes has to do with technique and tools. Nihilism takes away the emphasis on learning to use the tools correctly. So, what I sometimes do is ask my students to use the tools of legal internal logic to defend competing positions. That tends to show how good technique can be used properly to argue different sides of the same issue (and keeps them from clinging to one side of the debate). It also shows how sometimes there would be "one true answer", and the alternative would be much more difficult to defend using legal thought patterns.

I also sometimes use a Luhmannesque approach to this: I ask people to isolate, for the purpose of discourse, the legal argument from the surrounding stuff. It's a good exercise in using the legal system exclusively, in a self-referential way; and it provides the more perceptive people with the awareness that they can enter and exit the legal framework at will, not losing their overall broad understanding of the world, but choosing to engage with the tools they learned.

Posted by: Hadar Aviram | Sep 24, 2008 9:31:36 AM

One antidote to the legal realism view you identify is reading lower court opinions. In the case of Bell Atlantic, I think Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), provides an excellent example of how to grapple with a difficult Supreme Court opinion.

Posted by: Archit Shah | Sep 23, 2008 7:14:51 PM

I've noticed this dynamic in my own first-year classes, and I don't think it's coming from other professors. Rather, I think students are reacting to my attempts to push them to realize that, at least for the cases we study, there are multiple plausible arguments, and often weaknesses in every single opinion we read. Somewhat like overcorrecting when your car goes onto the shoulder, I think the students react to the suggestion that there is no "right answer" by forming the theory that it's all just politics by other means. I inadvertently contribute to this by trying to draw out the hidden intuitions that might be driving a judge's reasoning in a particular opinion. But I try to combat the realist response by asking, "Well, how would *you* decide this case?" I press any student who answers with a simple, "Party X should win," to back it with a plausible legal argument.

As Orin notes, part of the problem is the selection of cases. Of course, I like to teach the "interesting" cases, the ones where the answer is fuzzy and we can have a debate. And those are the ones in the textbook. But the students don't get a real sense of just how many "boring" cases are out there -- ones where there's a pretty clear answer.

Posted by: Bruce Boyden | Sep 23, 2008 3:05:11 PM

Verity: Yes, I could tell what you meant. Text-only irony is hard to convey, I suppose. I thought the ellipsis could take the place of a smiley-face... :-)

Posted by: Chris | Sep 23, 2008 2:15:05 PM

I think the reason students have this attitude is that we usually teach opinions from the Court of last resort, where there is no shadow of the possibility of reversal. We then ask why the Judges or Justices did what they did. To give them a more realistic sense of the texture of the law, you might have students imagine themselves arguing before lower court judges instead. Lower court judges are more likely to say, "I don't like this, but the law is the law."

Posted by: Orin Kerr | Sep 23, 2008 12:20:29 PM

I think "legal realism" is what's taught in law schools, probably by necessity. Something is lost without giving a case its historical-social-political context, and there is always a way to explain the decision completely in those terms.

I would also like to point out that holding that embarrassment is an institutional constraint does not escape "legal realism." It still sidesteps the issue that there is something about our legal rules or institutions that are, in themselves, reasons for deciding a particular way. Unless the argument is that every bad decision is accompanied by embarrassment...

Posted by: AndyK | Sep 23, 2008 11:58:13 AM

Please, go ahead and argue with Bush v. Gore. My point was only that for some this marks the high (or low) point of justices' being motivated by concerns besides legal doctrine, stare decisis, etc.

Posted by: Verity Winship | Sep 23, 2008 11:41:28 AM

"One of my colleagues responded by pointing to Bush v. Gore, which is difficult to argue with..."

Is Bush v. Gore really that difficult to argue with? I mean, there was a dissent and all...

Posted by: Chris | Sep 23, 2008 11:33:10 AM


This strikes me as similar to the tendency of college students to declare themselves nihilists and/or post-modern. It certainly gets them out of some work!

I think there are some good ways to deal with this. You could push on it and ask them whether judges really can do whatever they want in all cases. Show them some straightforward district court cases, for example. They might come to realize that, at the very least, it is only in the "hard cases" that judges have this kind of wiggle room. (Indeed, this is one of the problems with teaching from hard cases or with teaching jurisprudence generally: often, these really might be value-based decisions.)

Once you've shown them that, you might ask them why it is, if it really is just about value judgments, no dissenting judge ever says that (or at least only rarely). And why do they bother cloaking those value judgments in legal jargon? Are the judges seeking to persuade? If so, whom? Alternatively (or in addition), are they trying to maintain some legitimacy? If they are just making value judgments, what are those value judgments based on--which side they want to win the individual case, a crass political belief, or some larger philosophical commitment?

They might realize that even though federal judges (at least on doctrinally or functionally non-reviewable issues) may be able to do whatever they want based on the value judgments, those value judgments include much more than simple and crass political commitments. They may also have rule of law or institutional values, for example, that push them to do some things that they don't agree with politically. If that's true, then the job of the lawyer is to find those buttons on the judge and push them. Thus, Justice Scalia might be convinced to write or join an opinion that achieves a "liberal" result if he is convinced that his other values require it. (Indeed, you can find many such opinions.) The same would be true for Souter, Breyer, Stevens, Ginsburg, and everyone else, of course. So saying that it is all value judgments doesn't get them where they need to go.

Finally, you might point out to them that they are studying to become lawyers. They will likely never win or lose a case based on a "what did you have for breakfast, judge?" kind of argument, so even if they are committed to this caricature of legal realism, perhaps they ought to spend some time learning the doctrine and the types of arguments that they will be expected to deploy. Indeed, even if they never win a case based on doctrinal arguments, they surely will lose clients if they walk into court with this strong realist attitude.

In other words, I would just deal with the issue explicitly. You might convince some of them that it isn't just value judgments all the way down (at least, not all the time), and that even when it is just value judgments, they are way more nuanced than they are imagining right now. And for those whom you cannot convince, you will at least give them the gift of deepening their understanding of legal realism so that they sound a little more educated, and give yourself the gift of setting expectations that they learn the doctrine--because you will not be grading their exams based on what you had for breakfast. Tell them that you'll be fasting.

Posted by: Hillel Levin | Sep 23, 2008 10:57:44 AM

If they are, where did the students learn to be legal realists? This sounds like a garbled (or perhaps not-so-garbled) version of what many of our colleagues are teaching them.

Posted by: James Grimmelmann | Sep 23, 2008 10:33:29 AM

But now that you've managed to turn them into cynics, it's time to show your chops by bringing them back into the fold, that's not as bad as it appears, there can be integrity in the law and there are judges who adhere to the rules, their personal feelings aside.

Lead them out of the forest onto the path of righteousness.

Posted by: shg | Sep 23, 2008 10:32:20 AM

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