legal process and feldman and lon fuller

I reserve the term "Legal Realism" to describe the movements and individuals at Yale, Columbia, Johns Hopkins and a few other places in the post-WWI period who attempted to take the general insights and exhortations of Pound to develop a more comprehensive understanding of the way that law actually "worked." Though one could emphasize the specific studies done by some Realists, as Feldman does, to show their commitment to empirical study, the major insight we should gain is that a "Realist," whoever s/he was (and Hull has a nice series of lists put together by Karl Llewellyn throughout his life of about 100 people, many of whom don't appear on various lists he generated), wanted to wed law more closely to the actual complex practices in American business, government, finance and life. For people in the 1920s the quaint world of Langdell in the 1870s seemed like a world removed, and it was. But law for the Realist was to be an engaged practice of law, one that reformed law to be more citizen friendly and understandable. In this connection, the two essays I assigned are interesting windows into Legal Realism.

1. The Web page of the American Law Institute briefly describes the history of the Institute. It was organized in 1923 in order to correct two chief "defects" in American law: "its uncertainty and its complexity." These defects had produced a "general dissatisfaction with the administration of justice." The reasons for the defects were variously enumerated: conflicting statutory provisions, the lack of precision in use of legal terms, the great volume of recorded decisions, lack of systematic development of law. Legal Realists to the rescue! Actually, almost the entire legal establishment agreed that these defects could be remedied throug a series of "Restatements," which would tell judges and lawyers what the law was. In a sense the ALI Restatement project was a product both of Langdellian "science" and Legal Realist "empiricism" with the end of declaring the nature of American Law.

2. The essay of Jerome Frank, derived from Law and the Modern Mind, illustrates another aspect of Legal Realism--its concern with judging and the way that judges arrived at judicial decisions. His book is an attempt to debunk the notion that legal reasoning has anything really to do with syllogistic reasoning. "Since the judge is a human being and since no human being in his normal thinking processes arrives at decisions..by the route of any such syllogistic reasoning, it is fair to assume that the judge, merely by putting on the judicial ermine, will not acquire so artificial a method of reasoning." Rather, judicial decisions "are worked out backward from conclusions tentatively formulated." He quotes Judge Hutcheson's essay about the nature of judicial reasoning. The judge "broods" over the cause and then "waits for the feeling, the hunch--that intuitive flash of understanding that makes the jump-spark connection between question and decision." Since judicial decision-making, then, is based on these "hunches," it is relevant to consider the "political, economic, and moral prejudices of the judge." Rules are not the law but are "only among some of the many sources to which judges go in making the law of the cases tried before them." Legal rules enable judges to give formal justifications or rationalizations of the conclusions at which they otherwise arrive. Thus, it is essential for the legal profession to give up the rather childish need for an "authoritative father" in a judge--a father who has the characteristics of firmness, sureness, certainty and infallibility. How should this affect the teaching of law? "Our law schools must become, in part, schools of psychology applied to law in all its phases." Quite a different vision of things than Langdell's system, don't you think?

From Legal Realism to Legal Process

Feldman's brief treatment of the growth of legal process (115-123) helpfully points to several themes for our consideration that I will list here. I will only comment briefly on them, hoping that they stimulate some of your own thoughts.

1. The relationship between empirical studies and cultural relativism. Feldman doesn't treat at any length the growth of the field of anthropology in the intra-War period, but one of the implications of this growth was to heighten our sense that cultural difference meant that no one had a "truth" that others could trump anyone else's "truth." In addition, the result of empirical studies was simply the desire to have more studies. Certainly some law reform would result, but it might lead to more and more laws that defied any kind of systematic summary.

2. In a time of cultural relativism, assumed by the Realists, there was a strong need to propose a theoretical justification for democracy. Why, in a time of cultural relativism, is democracy considered superior to fascism or communism, two very attractive alternatives for many people during the degression of the 1930s?

3. The justification for democracy's superiority focused on democratic process and consensus. John Dewey was the leading philosopher standing behind this development. In other words, we are superior to communism and fascism not necessarily because we have a more elevated doctrine of the human or that democracy is inherently better but because democracy has superior procedures in place to deal with conflict and to develop a consensus among people.

4. Law asked questions of itself that fit into this broader philosophical context in America. The central question was "What are the conditions necessary for the rule of law?" The answer? "Process, supported by an assumed social consensus about the acceptability of the American legal system." Feldman lists the case of Lon Fuller who articulated eight procedural desiderata that constituted the "inner morality of law" for our society.

5. Feldman refers to the work of Hart & Sacks in stressing the importance of "institutional settlement"--that "decisions which are the duly arrived at result of duly established procedures...ought to be accepted as binding upon the whole society unless and until they are duly changed" (120). The operative word, as you see, is "duly."

6. Feldman only hints at it in passing, but I think the most significant law passed in the post-WWII period (between 1945-54) was the APA of 1946. This statute put the d-u-l-y- in duly by stressing both the proper way by which administrative agencies are to promulgate regulations and the means by which administrative decisions might be appealed to the federal courts.

7. The implication of the theory of legal process as applied to judges was that they were now required to give "reasoned elaboration" of their decisions. I haven't done such a study, but it would be interesting to trace the way that judicial "reasoning" changes, at least as reflected in judicial decisions, from 1900 to 1960. We saw in the Lochner case (1905) that Justice Peckham didn't go much give legal reasoning for upholding liberty of contract but simply said that the Court disagreed with the approach of the dissenters. Precedents were mentioned, to be sure, but they were quickly dismissed as not dispositive. The real meaning of "reasoned elaboration," however, was that judges do their work differently from other professionals. They don't just hand down decisions; they "reason them out." You wonder if this is a return to the emphasis on law's uniqueness or autonomous nature that goes all the way back to Langdell.

8. Feldman's summary on pp. 122-23 helpfully puts the "legal process" movement into historical perspective.

"Indeed, looking backward at legal process scholars, they often seem so arrogant, yet prosaic, as to be puzzling: why would intelligent scholars devote their careers to articulating such trite maxims as 'treat like cases alike'? But when legal process is viewed as third-stage modernism [Feldman has an elaborate system of tyring to define the stages of American legal thought], the dedication and even zeal of its devotees becomes understandable. After WWII, legal foundationalism seemed endangered: the rule of law and the objectivity of judicial decision making were under intellectual siege. The realists had irremediably discredited the abstract rationalism of Langdell, and now the realists' own empiricism was likewise disparaged. And in the midst of this intellectual crisis and impending despair, the legal process theorists believed that they had discovered the solution..They explained how American had democracy and the rule of law. They justified America through the Cold War. They described the structures, the conditions, the processes of the American legal system that produced the objective foundations necessary for judicial decision making."

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