In our September 2011 post, we introduce two members of a younger generation of new legal realists, and re-play some nuggets of wisdom from two of the older generation…. Jerome Frank and Karl Llewellyn.
THE NEW GENERATION OF REALISTS …. NOW JOINING us in NLR Conversation are KT Albiston and Riaz Tejani.
KT is a Professor of Law at UC Berkeley’s Boalt Hall, where she teaches in the Jurisprudence and Social Policy Program. She has degrees in psychology and sociology from Stanford as well as both a J.D. and a Ph.D. from Berkeley. She practiced law at the Legal Aid Society of San Francisco, where she worked on issues in employment law related to gender discrimination and work/family policy. Her research focuses on the relationship between law and social change, with particular emphasis on how institutions shape the meaning of law in particular social settings, and how law relates to broader social processes that sustain systems of power and inequality. For example, she studies rights mobilization, the role of public interest law organizations in bringing about social change, and how technical legal rules have unintended consequences for the development of law. KT is a compulsive fiction reader, probably because her sister is a librarian, and procrastinates with literature ranging from Richard Powers to Edith Wharton.
Riaz Tejani is a lawyer and anthropologist interested in the capacity of law under conditions of globalization to conceal and hide what is going on. Based on lengthy ethnographic fieldwork in France, his first book manuscript looks at the role of multiculturalism in the failed European Constitution–a failure with comparative lessons for students of American federalism and immigration law. His current research explores the long term rapprochement between anthropology and academic law and contemplates the use of ethnographic theory and methods to understand doctrines of Tort law in their living, practical context. Riaz holds a Ph.D in Anthropology from Princeton University and a J.D. from USC, and is Assistant Professor at the Phoenix School of Law. When not teaching he has been seen recording and performing with the indie rock group “The French Semester.”
AN OLDER GENERATION OF REALISTS: Richman on Jerome Frank
Steven Richman, Edgar Lee Masters and the Poetics of Legal Realism, 31 Cal. W. L. Rev. 103, 108 (1994) wrote:
Jerome Frank, in his culminating work Courts on Trial specifically addressed the question “Are Judges Human?” Legal rights are not rule-intensive, but rather, they are a function of what will happen in a particular court as a result of a particular lawsuit, which witnesses will lie, and so forth. Facts are fluid. They are what the jury determines them to be and are, at most, guesses. Not facts, but subjective facts lead to decisions, and Frank argues that perhaps only seventy-five to eighty percent of contract cases can be predicted to be resolved in accordance with actual principles of law. In other words, Frank rejects the proposition that legal rules govern, and sets forth his “realistic” view, that only the particular lawsuit establishes rights, and not pre-conceived rules. Judges and juries are themselves fallible witnesses of the fallible witnesses testifying before them. He refers to legal philosophy or jurisprudence as “legal magic.” Legal rules do not control the trial courts since they cannot, no matter how intelligent the judge, control the subjectivity of the fact-finding process. . . .
Frank divides the so-called realists into two camps: rule-skeptics (in which he places Llewellyn) and fact-skeptics (in which he places himself). The problem with the rule-skeptics is their limited experience or emphasis upon trial courts. As a “fact skeptic,” Frank goes so far as to argue that legal education should include studying the effect of judicial corruption. The basic thrust, then, of the realists in the 1920s and 1930s was that “law is indeterminate.” They were united in terms of their focus away [*109] from rules and on individual judicial decisions. Their contribution, still debated today, was that law should be studied in terms of what is going on in the real world and not simply in a theoretical exposition of how law “ought” to function.
Excerpt from Karl N. Llewellyn, THE BRAMBLE BUSH (p. 89-9)
(Originally published in 1930 and then reissued in 1950): These are lectures attempting to introduce the students at Columbia Law School to the study of law. “[T]he first craft of law a man must learn is the craft of the law-student; and to that one the lectures as written attempt to give both body and meaning.” [Note that there were almost no women lawyers in 1930, and Llewellyn writes about “men” meaning all affected by the law]
. . . You find me dealing with “the law” and what it is and does. I say its center is the action of officials, all law officials — and no sooner say it than I slip off my own platform to land for lecture after lecture in discussion purely of these courts of high review, and what they do.
Surely it is clear that I am damned out of my own mouth. If, as I claim, what appellate judges do is vastly more important than what appellate judges say, that can be only because importance to other people, to the laymen, to the poor devils to whom they do it, appears to me the primary measure of importance. And on that basis surely you should ask me: how many people do appellate courts affect? For a thousand cases appealed to the court of last resort there are ten thousand which stop at the intermediate court of review. For a thousand which reach the intermediate court there are ten or twenty thousand which go wholly unappealed. More; for a thousand cases on trial in the higher courts of trial — the County Court, or Circuit, or Supreme — there are again ten or twenty thousand settled finally in some lesser court of trial: a small claims court, a municipal court, the court of a magistrate or justice of the peace. Here in this moving mountain of the cases unappealed, is the impact of the officials on society — even within the realm of litigation. Beyond, there is the massive impact of the administrative machine. By my own showing, on my own premises, these are what count. I pass them by. Out of my own mouth, damned.
Yet what can I do? I am a prey, as is every man who tries to work with law, to the apperceptive mass. I see best what I have learned to see. I am a prey, too — as are the others — to the old truth that the available limits vision, the available bulks as if it were the whole. What records have I of the work of magistrates? How shall I get them? Are there any? And if there are, must I search them out myself? But the appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in the libraries. The convenient source of information lures. Men work with it, first, because it is there; and because they have worked with it, men build it into ideology. The ideology grows and spreads and gains acceptance, acquires a force and an existence of its own, becomes a thing to conjure with: the rules and concepts of the courts of last resort. And there is more to the matter than this. It does remain true that if a case is appealed, it is the appellate court whose word is the last word, the word that counts. We cannot then neglect it. In large matters (which will pay appeal) we can and must work with the high court in the forefront of our minds. Even in small matters, we have seen that the rules of appellate courts are good to press upon the lower, that the lower court attempts to give heed to them, that with them we may bring the lower court to see our way. There is excuse, then, there is reason, for fixing attention on these upper courts. But is that either reason or excuse for stopping with them.
What warrant have we for assuming that even the judicial system alone (I say nothing of the administrative) works with any unity? We look at our highest courts and find their words a long way from their doing. In their own work we find that we can trust their rules part way, but part way only. In their own work the drive-belt slips between rules and results. Must we not then assume a further slipping as the distance grows, and as we move down the line? At each stage less exalted judges, at each stage more of them: are we not to guess that the average of ability is lower too? Are we not to guess that other factors join in giving the wheels their drive, as the factor of high court rules slips more and more into ineffectiveness; that the interplay of belt and gearing turns the machine in strange, unsuspected ways? Ignorance, prejudice, accidents of experience, favor, indolence, even corruption: how much, how often, when, and where? How far, too, does the set-up of the procedural system stand between the rules and the results? Yet by their fruits shall ye know them. Law is, to the community, what law does. What picture of the doing can you find in all this study of appellate courts alone?
Again, as so often, I have no remedy. One thing of great importance we can offer: the wherewithal to discover the official version of the rules, and some experience in observing how the highest of officials work with them. Some practice, too, and some information, as to what they mean to laymen whose affairs are big enough to call for taking thought as to these officials. We can, too, call attention, now and again, to the limitations of the picture thus set up. But we cannot keep the picture from distortion, as you go more and more deeply into a single part of it, neglecting all the others. We cannot take you into the other parts. We have neither the wit nor the knowledge — neither we, nor any man. A first beginning has been made, is being made, at getting the necessary knowledge. No more: a first beginning. We have achieved in this the first stage on the road to wisdom: some few of us have begun to guess how limited the knowledge of any of us is. For you, meanwhile, the task of setting yourselves so far as in you lies to question always, as you go, what lies beyond; to whom does this rule mean anything at all? And how much, even to that man, does it mean?