Recovering the Legal Realists
Over at Balkinization, Brian Tamanaha (law, St. Johns) has a terrific post about debunking the caricature often painted about the legal realists. He notes that many “appear to see the Legal Realists as sort of proto- or early day Crits (members of Critical Legal Studies) who exposed the rampant indeterminacy of law and insisted that judging is inevitably infused with and shaped by the subjective views of judges.” However, he contends, this view is mistaken:
[I]t seems a mischaracterization to suggest that the Realists thought it was impossible “for judges to decide apart from their views and ideology.” Their insistence that these views come into play in certain contexts—rebutting the formalistic portrayal that they never come into play—did not mean they always (or even often) come into play. Their insistence that a narrow focus on legal rules alone cannot fully explain judicial decisions—expanding the focus to the craft of lawyering, the institutional setting of judging, the socialization of lawyers and judges into the legal tradition—does not mean that the ideological views of judges determines their decisions. Chemerinsky is right that the Realists exploded the myths of formalism, but it does not follow from this that they believed that judging is pervasively ideological or subjective. And most of the Realists were not rule skeptics in any deep sense (as Twining makes clear).
There is a fundamental reason why is wrong to see the Realists as early day Crits: the Realists believed in the law (keeping in mind that this was an amorphous and disparate group). Their goal was to improve the law. Llewellyn professed his love for the law and his pride in being a lawyer. One could hardly be more un-Critly (to coin an ugly neologism) than that. No Crit would have drafted the Uniform Commercial Code to match business practices—which Llewellyn did with great satisfaction. Moreover, while several Realists were New Dealers, their overarching emphasis on enhancing the efficiency of law and on making the law conform more closely to ongoing social behavior had a deeply conservative thrust—again, most un-Critly.