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Wednesday, August 15, 2012
Is Legal Realism "Giving Up" on Law?
In the comments to my prior post, I had a long and enjoyable exchange with commentator “AF.” One particular sentence that caught my attention was this: “whenever law professors say that the doctrine is entirely incoherent and that for every case there is a countercase, they are usually taking particular dicta out of context and not presenting a fair reading of the overall state of the law.”
AF’s sentiment is pretty common. I’ve had multiple law professors characterize my legal realist approach as automatically equivalent to giving up on law. Whenever a legal realist like myself argues that a doctrine is incoherent, it upsets a lot of people, because they read this to imply that everything is up for grabs and judges make decisions based either on what they ate for breakfast, or based on crass ideology a la conservative versus liberal. And since most people—especially most judges—do not think that is how many areas of law work, and especially not the relatively apolitical arena of patent law, they think that the claim is overstated. Sure, there is some openness in the doctrine that requires judgment, but experienced lawyers and judges (i.e. those with good judgment) have a pretty good sense of the right answer most of the time. Thus, not everything is up for grabs. It is not a fair reading of the law to say that everything is up for grabs.
This “response”—and I put response in scare quotes because I don’t really disagree with it—rests on a fundamental misunderstanding of the realist claim and the realist project. The legal realist claim is not, at least not to me, that conflicting doctrine means everything is up for grabs. It is that when we say that a legal doctrine requires judgment, the “judgment” incorporates some unarticulated intuitions. The point of the legal realist project was not and is not to say that these unarticulated intuitions are wrong or bad or arbitrary, it is to articulate the intuitions and then formalize them into doctrine.
Take contract law. The legal realists criticized a bunch of contract law doctrines (e.g. unconscionability, rescission, consideration) as incoherent. The point was not that lawyers could not predict how courts would decide contract cases, or that judges could do anything they liked. The point was that judges were using “judgment” to incorporate many unarticulated factors such as ordinary commercial practice, the relative sophistication of the parties, the amount of economic duress in a bargain, etc. What the realists then did was write the Uniform Commercial Code to more formally incorporate these considerations rather than leave them to judicial discretion. The point is not so much to address uncertainty (if skilled lawyers share the same judgment as judges, there is no uncertainty), but to increase transparency. In this important sense, the legal realists were optimists about doctrine and rules.
This leads to another of my pet peeves. Whenever the legal realist project has succeeded in formalizing what were previously economic and other unarticulated considerations into legal doctrinal factors, e.g. tort (Hand formula), contracts (UCC), antitrust, etc., courts treat the reformed doctrine as God-given and the legal realist contribution is promptly forgotten in an Orwellian we’ve-always-been-at-war-with-Eastasia fashion. Whenever the legal realist project has yet to succeed, courts and lawyers argue that law professors write useless articles.
Posted by Tun-Jen Chiang on August 15, 2012 at 10:08 PM | Permalink
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To invoke an argument from authority: "What is incoherent is unintelligible, because it is self-contradictory, fragmented, disjointed [lacking 'order']. What is coherent is intelligible, makes sense, is well-expressed, with all its bits hanging together." (Joseph Raz)
That a legal doctrine is coherent does not mean we thereby MUST endorse it or necessarily believe it true in some sense, but it does accord it presumptive plausibility, in which case the burden of defeasibility shifts to those who critique the doctrine for this or that reason. In other words, we have the analogical epistemic equivalent of the "default and challenge" model of warranted belief, meaning the doctrine is presumptively (or provisionally) true until sufficient evidence or critique can prove otherwise. The presumption is justified insofar as precedential cases provide _reasons_ for particular rules and doctrines (while conceding, in Neil Duxbury words, 'not only that unreasoned decisions can be precedents but also that even the most carefully reasoned decisions need not be').
Posted by: Patrick S. O'Donnell | Aug 16, 2012 7:02:11 PM
I should note that there's one way we might be speaking past each other insofar as "coherence" is used in a particular instance to say a particular judicial outcome does not cohere, that is, fails to properly "fit" with the doctrine at hand, hence it is, in this localized sense, "incoherent." But that does not render the doctrine itself incoherent. (And I'm not committing to any specific 'coherentist' epistemic or ethical criteria of truth in the here or above.). Implications (or, loosely, 'deductions') from doctrines are not necessarily "uniquely correct answers" but, as in philosophy, "the least problematic, most defensible position that we can hope to secure--the problem resolution that fits most smoothly and harmoniously within our overall commitment to the manifold 'data' at stake in these...matters." (Nicholas Rescher). Completeness, comprehensiveness, inclusiveness, and so on are idealized features of our doctrines but, as I said above, unattainable in the real world, although they are relevant as evaluative criteria for assessing the comparative strengths or weaknesses of doctrines. Features of a doctrine's coherence having to do, for example, with comparative simplicity and completeness, consistency and explanatory or predictive power (features exemplfied in degrees and on balance...as a whole), may be questioned or found wanting with regard to any given legal determination or judicial outcome, but such localized incoherence is not equivalent to (globalized) doctrinal incoherence.
Posted by: Patrick S. O'Donnell | Aug 16, 2012 6:28:03 PM
TJ,
You’re right that I was using it in a different sense than I gathered you did in the post (and further implying your use was far too broad). Of course one might entertain a stipulative legal definition of incoherence or a “precising” definition, perhaps along the lines you suggest here (‘a doctrine is “incoherent” when one cannot discern the concrete outcome from its verbal formulation, even if the verbal formulation is intelligible as a linguistic matter’), but I still think this is not a standard use of the concept, even in the sense you cite here of “lacking order,” which one can take to refer not just to linguistic or verbal order, but the “order of thought,” which is reflected in the linguistic and verbal order, or what constitutes logical (in the broadest sense) intelligibility. Thus I was not speaking simply about “linguistic” coherence but coherence with regard to conceptual (and legal) intelligibility, the former a necessary condition of the latter. Discerning a concrete outcome from a verbal formulation accords too much (perfectly) predictive power or places unrealistic expectations upon doctrinal formulations, which evolve in the course of the common law (hence they are never ‘final’ or definitive like, say, mathematical axioms or scientific formulas, or to be construed in a strictly formal deductive fashion).
As Patrick Atiyah explains in his discussion of the doctrine of consideration in contract law, “Doubtless the law is sometimes irrational, but to treat a whole doctrine of the law as irrational implies both an extraordinary lack of faith in the intelligence of former judges, and an astonishing perversity in the erection of a system of precedent which requires that their decisions should be followed.” Legal incoherence is tantamount to irrationality, coherence, on the other hand, and again, is a minimal rational desideratum (hence ‘order,’ ‘intelligibility’). Doctrines will always run up against hard cases or outliers, which may or may not prompt changes in the doctrine, but it (still) strikes me as wrongheaded to speak of doctrines qua doctrines as “incoherent” in toto, as it is coherence which permits something to be counted as a “doctrine” in the first instance (i.e.: absent coherence, no doctrine).
None of this of course has any bearing on the criticisms of this or that doctrine: it just won’t do to invoke the grand charge of “incoherence” to characterize such criticisms. Are not legal doctrines ex post formulations designed to make legal sense of a body of decisions in a certain area of the law? Legal doctrines are therefore reflective and retrospective in character prior to their role in serving any prospective aim or purpose, even if we perforce must rely on them for prospective reasons or predictive purposes. Conceived purely ex ante, they’re not nearly as consistent or predictable as we might wish them to be, for we although may use them to anticipate or foretell outcomes, they’re occasional failure or shortcomings in this regard does not add up to “incoherence,” and increased frequency of occurrences of same simply suggests the need for modifications in the doctrine (in rare instances, dispensing with a doctrine altogether). One should not infer too much from the failure to discern the concrete outcome from a doctrine’s verbal formulation in any given case: it certainly does not warrant a charge of incoherence against the doctrine itself, but rather, as I stated the first time round, inconsistency, inadequacy, a lack of some sort, and so on. Again, a doctrine by definition is necessarily coherent, while a formulation that is incoherent is not worthy of the appellation “doctrine.”
Posted by: Patrick S. O'Donnell | Aug 16, 2012 5:01:15 PM
TJ, I certainly didn't mean to accuse you of academic dishonesty! I just disagreed with your reading of Invitrogen.
Posted by: AF | Aug 16, 2012 2:31:42 PM
AF, to that extent, I'll accuse you of hindsight reconstruction in the mode prohibited by 35 USC 103. Over 3000+ volumes of Federal Reporters and U.S. Reports, one can almost always find traces of where judges grappled with the relevant considerations. But one will find even more instances where judges expressly deny they ever consider anything except text and logic, and swear before the Senate that they are mechanical robots. To say that the academic critique adds very little new to the analysis is thus an unfair response.
Most puzzling to me, where I DO cite a judge for articulating some part of the unarticulated intuition (Invitrogen), you accuse me of committing academic dishonesty by distorting the opinion.
Posted by: TJ | Aug 16, 2012 1:46:48 PM
For the record, my comment was in response to TJ's point that "[w]henever courts and lawyers say that 'the inquiry is a practical one,' that almost always says to me that they have no theory and are making I-know-it-when-I-see-it judgments." I was not looking to pick a fight with the academy :) (And FWIW, I would have thought that what TJ is describing is closer to the general method of doctrinal legal scholarship than to legal realism per se.)
In any event, criticism of existing doctrine as masking unarticulated assumptions doesn't bother me in the least. On the contrary, I think that such criticism (certainly including TJ's criticism of enablement doctrine) virtually always contains some truth, and sometimes quit a bit of truth. My point was that in many cases, scholars overstate the extent to which the allegedly unarticulated assumptions that they want to make explicit are in fact unarticulated. Often (and I believe in the case of enablement), the case law expressly grapples with the very difficulties the scholar points out and identifies the very considerations the scholar states are actually driving the outcomes. The difference is less that lawyers and judges fail to identify what is really going on, and more that their account is partial due to the fact that it is in the context of a particular case.
Posted by: AF | Aug 16, 2012 7:35:59 AM
Patrick, it depends on what meaning one attaches to "incoherent." In a strict sense, a doctrine is incoherent to me if it lacks an underlying theory that explains how a verbal formulation translates into concrete outcomes. So the obscenity doctrine is incoherent in this sense, because "obscene" is not self defining and the lack of a theory means the translation to concrete outcomes occurs through a I-know-it-when-I-see-it process. In a broader sense, many people take a claim that a doctrine is incoherent to mean that everything is up for grabs. Very few legal doctrines are incoherent in this broader sense. Even obscenity is not completely up for grabs, since we have a pretty good idea that the Mona Lisa is not obscene.
[Update: It seems I misunderstood Patrick's point. Patrick seems to use a yet different definition of "incoherent," to mean that a verbal formulation is linguistically unintelligible. Only the "&*%$@" doctrine is incoherent in this sense. But Webster's dictionary defines "incoherent" both in the sense of "lacking order" and "lacking intelligibility in speech." It is not hyperbole, nor even bad English, to say that a doctrine is "incoherent" when one cannot discern the concrete outcome from its verbal formulation, even if the verbal formulation is intelligible as a linguistic matter.]
Posted by: TJ | Aug 15, 2012 11:11:28 PM
One quibble: Are not legal realist claims to the effect that this or that doctrine "is incoherent" rhetorical hyperbole? Inconsistent, incomplete, inadequate, unpersuasive, dated, calcified, ideological, and so forth and so on, seem more often closer to the truth. The doctrines being critized, in other words, are coherent on their own terms, or up to a point, or in a way, or for some purposes and not others, as the property of coherence simply suggests some miminal standard of intelligibility or comprehension. If that were not the case, it would make little if any sense to speak of "reforming" the doctrine, indeed, to talk of any "doctrine" whatsoever, coherence being one of the miminal conceptual desiderata for defining or identifying doctrine in the first instance, however unsatisfactory any particular doctrine, in time, and for whatever reason(s), turns out to be.
Posted by: Patrick S. O'Donnell | Aug 15, 2012 10:53:05 PM
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