Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

In the previous installment in this two-part series, I surveyed how the theory of “legal realism” came to displace the traditional views of law shared by Anglo-American attorneys and judges. I explained that the Constitution’s provisions for the judiciary were drafted with the traditional views in mind—but once “legal realism” began to dominate legal thinking, the judicial system no longer worked as expected. Legal realist thought encouraged judges to engage in activist behavior not anticipated by the Constitution.

How, therefore, do we recapture our judiciary from the legal realists?

The first thing to remember is that the problem centers in specific institutions: American law schools and the higher reaches of the judiciary. If follows that any solutions have to focus on those areas. It is pointless to attack those not responsible for the damage, such as state trial court judges or lawyers generally.

Next, keep in mind that,  despite its name, “legal realism” is an ivory tower theory. Although one of its founders, Oliver Wendell Holmes, Jr., had substantial real-world experience, this is not true of most of those who spread the doctrine. These are mostly law professors with little experience in law practice, and even less in business and the economy. They often promote realist ideas because they picked them up in law school or because they think that’s what faculty at more prestigious institutions believe. These professors spread the doctrine through their teaching and law journal articles and other media.

Any cure for judicial activism has to be directed not merely at the offending judges but at the legal opinion molders who encourage bad judicial conduct.  On the other hand, you can’t address the law school problem merely by firing every realist faculty member: They are protected by the First Amendment, norms of academic freedom, political reality, and American ideas of fair play.

Here are some more practical reforms. Each has the advantage of making sense for other reasons as well:

Term limits on appellate judges and justices. A single long term for each judge would encourage appointment of somewhat older nominees, nominees more tested and shaped more by experience than by inaccurate theories. Abolishing lifetime appointments probably would reduce judicial arrogance as well. In another post, I addressed  reasons for imposing term limits on the U.S. Supreme Court.

Choosing appeals court judges primarily from trial court judges and from experienced attorneys rather than from academics or politicians. Aside from the occasional academic like Antonin Scalia, most appointments should come from the trial bench and from the ranks of outstanding private practitioners. We should avoid appointing former politicians to the Supreme Court; they tend to become activists.

Reduce the role of the U.S. court system. Nothing in the Constitution requires that Congress fund any federal tribunal other than the Supreme Court. In fact, among federal systems (Germany, Australia, Canada, etc.), America is relatively unusual in having a complete national court system parallel to those of the states.  Although state judges sometimes are infected with the activist virus, I suspect it is more prevalent among federal judges. If so, it might make sense to pare back the federal courts and rely more on state judiciaries.

Open up legal education to free market competition. Many states grant a monopoly on legal education to law schools approved by the liberal American Bar Association. States should permit aspiring lawyers to receive their education by the traditional clerkship method. They should permit law school accreditation by entities other than the ABA. Of course, the bar exam and associated licensing requirements should be preserved.

Establish higher standards for law professors. The following is a typical resume for a newly hired law professor:

  • Good grades at a prestigious school where most of the teachers lack real-world experience,
  • a year or two clerking for a judge or writing memos in a law firm not typical of practice generally (e.g., a Wall Street firm),
  • being hired onto a faculty.

Obviously a person with a resume like this is utterly unqualified to teach law students how to be good lawyers. Further, such a person is easy prey for silly theories.  State authorities should require that law faculty have significant experience in what they teach, especially at state law schools. States require extensive experience in licensing other professions (such as physicians), and even for skilled trades such as plumbers and electricians.

Require fairer hiring procedures for law professors. In addition to employing novices to do a professional job, law school hiring malpractice includes using politically correct criteria favoring certain ethnic groups and freezing out libertarians and conservatives. Law schools sometimes choose faculty with interests in fringe subjects (e.g., “gender studies”) over experts in subjects their students actually need (e.g., commercial law). This is another problem legislatures and boards of regents can address.

Require law professors to engage in real research and publish their findings. Much of the “research” in legal academia amounts to writing articles that are just fancy briefs for pre-fixed conclusions. Often a pre-set conclusion is some leftist canard the professor picked up as an undergrad.

University law schools are not playgrounds for mental self-indulgence. They are institutions with graduate-level status. Faculty research should be appropriate to that status.

Thus, law professors should be required to produce genuine, objective, peer-reviewed investigations into real world subjects. Examples include the influence of historical events on law, how anti-trust rules affect the economy, the psychological effects on jurors from specific courtroom procedures, and the effects on crime of sentencing guidelines. The goal is to push back the frontiers of human knowledge, and perhaps improve the legal system as a result.

Some law professors do valuable work of that kind, but most do not. If a professor wants to spend his days writing briefs arguing for constitutional rights for dolphins, then he should seek employment with a political advocacy group. He should not be taking up space on a research faculty.

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A common theme connecting all these proposed solutions is “opening up the closet”—letting in the sunlight of fairness and from the real world. That is a tested prescription for dissipating arrogance and theoretical cobwebs. The difficulty is in letting the public know that the closet exists, and that we need to open it.

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