Legal Realism Untamed
University of Virginia School of Law
May 22, 2012
Virginia Public Law and Legal Theory Research Paper No. 2012-38
What makes hard cases hard, and what makes easy cases easy? A common response to H.L.A. Hart’s (mis)reading of Legal Realist is that the Realists offered their arguments solely in the context of the hard or indeterminate cases likely to find their way into appellate courts. Llewellyn, for example, made clear that his claims were restricted to “any case doubtful enough to make litigation respectable,” and Max Radin limited his Realist claims to “marginal cases.” Thus, a “tamed” version of Realism limits the Realists’ claims to the self-selected but non-representative group of disputes that are the stuff of reported appellate decisions. And this version is “tamed” because it is compatible with the view that standard legal sources determine the outcome in the cases that are not doubtful and would be futile to litigate. Indeed, the version is so tamed that it is largely compatible with Hart’s own response to the Realists.
But although many commentators, including this author, have at times subscribed to this effort to tame Realism, that effort may understate the magnitude of the Realist challenge by understating the effect of the gap between paper rules and real rules, to use Llewellyn’s terminology, on the makeup of the array of cases that are or are not doubtful. If, as Llewellyn and others argued, factors other than the standard (or literal) reading of standard legal sources determine the outcome even when the standard legal sources are clear, then the existence of such non-standard sources will make cases that are not doubtful under the traditional picture doubtful – and thus worth litigating. And if this is so, then the divergence between real rule and paper rule will be relevant not only in doubtful cases, but also in determining which cases are doubtful and which not. Realism would then be a claim not merely about doubtful cases, but a claim pervading the entire operation of a system of legal rules. To the extent that the claim is true, therefore, it represents a serious attack on the traditional picture of law throughout its operation, and not simply in the doubtful cases. To the extent that easy cases are easy not because of the plain meaning of the language of a written-down or black-letter legal rule, and thus to the extent that hard cases are hard not because of the indeterminacy of the language of such rules, the entire array of cases selected for litigation, and deselected from litigation, will be determined by factors not to be found in the paper rules. In this sense, American Legal Realism constitutes a less bounded -- and thus untamed -- attack on the traditional picture of law, although the ultimate soundness of the challenge still depends on empirical facts about the relationship, if any, between the paper rules and the real rules.
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Date posted: May 23, 2012 ; Last revised: August 5, 2012