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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.

* * *

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.

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Whenever a court issues a highly publicized liberal activist decision, constitutionalists understandably become upset. They cast around for ways to stop this kind of overreaching.

But if you want to devise a viable solution to misconduct, you have to understand the reasons for the misconduct. And constitutionalists almost invariably overlook one of the core reasons. This post discusses that reason. Next week we shall address possible solutions.

Federal judges and state supreme court justices are largely drawn from a group that, from the time they are law students, are trained in a particular view of the law. Its promoters call it “legal realism,” although it is neither particularly legal nor entirely realistic.  Legal realism is sharply at odds with the view of law on which our Constitution is based. Legal realism empowers judges intellectually and socially to subordinate the law to promoting favored social policy.

The Founding Era View

Let’s revert to the Founding Era for a moment: Although the Founders did not think much of the British king or parliament, they deeply admired the English legal system. Over the previous two centuries, the English legal system had evolved from a mere tool of the king into a cluster of institutions with a reputation for independence tempered by incorruptible respect for the law.

In England and 18th century America, judging was a learned, but fundamentally humble, enterprise. When interpreting statutes and other documents, judges did their best to follow the “intent of the makers.” When a document didn’t control the case, judges explored other documents, surrounding circumstances,  earlier court decisions, customs, and the principles of natural law. From these they deduced as well as they could the correct rule for the case at hand.

Deducing the correct rule is similar to developing a scientific hypothesis. In science, you examine the reliable data available and try to infer a workable hypothesis to describe or explain them. In the Anglo-American common law system, a judge examined reliable data presented to the court—testimony, documents, other evidence, earlier cases, prevailing custom, rules of interpretation, and so forth—to extrapolate a general principle applicable to the controversy before him.

Among those reflecting these values were two leading Founders who also were outstanding lawyers, Alexander Hamilton and John Marshall. (The real John Marshall, not the liberal activist some law-school text writers make him out to be.)

In those days, law students were educated primarily by serving as “clerks” in the offices of experienced and successful attorneys. They also attended numerous court sessions. Their education was very practical. And each generation of judges and lawyers passed judicial values onto the next generation. (Some English and American law students attended London’s Inns of Court, where they absorbed the same ideals.)

The Founders erected the American legal system to operate in the context of Anglo-American judicial values. The rules placed expressly or implicitly in the Constitution—life tenure, jurisdiction, judicial review, and so forth—were designed to operate in that context.

However, the context changed.

Enter the Ivory Tower Philosophers

In the late 19th and 20th centuries the focus of legal education began to move away from lawyers’ offices and the Inns of Court to the new law schools. As time went on, more and more aspiring students attended law schools rather than clerked for senior attorneys. Significantly, more and more law schools became located on university campuses. They became influenced by university trends in the liberal arts and social sciences. Many law schools became government institutions.

The problems afflicting liberal arts universities, especially government universities, began to corrupt the law schools. Even though legal education is really just a fancy form of vocational education, committees hiring faculty ignored how much practical experience an aspiring professor might have. Quite the contrary, when I was in academia (1985-2010) they tended to discriminate against experienced practitioners. Hires were made for academic credentials and political reasons instead. Faculty slavishly followed the lead of trend-setter institutions like Harvard and Yale. So did professional associations. (Attend an annual meeting of the Association of American Law Schools, and you’ll see what I mean.)

“Legal realism” was one of the trends. Beginning in the late 19th and 20th centuries, writers such as Oliver Wendell Holmes, Jr., at Harvard and Karl Lllewellyn at Yale, taught that law  “derives from prevailing social interests and public policy.” This quickly caught on among legal academics. Further, the idea that law was a creation of social interests and public policy suggested judges could improve the world by revising the law to fit their favored social interests and promote “good” public policy.

The PR Coup: Calling an Ivory Tower Theory “Legal Realism”

The favored position in the media enjoyed by the Harvard-Yale crowd enabled them to carry out a public relations coup (compare here and here). They called their ivory tower/central planning view of jurisprudence “legal realism.” They tarred the earlier, more practical view, with the insulting phrase “legal formalism.

Now, it is true that there are many versions of legal realism, from Critical Legal Studies on the far left to the Law and Economics group that, within legal academia, passes for “conservative.” (It’s actually utilitarian.) But all legal realists share the idea that law should be used as an instrument of social policy and that judges ought to play a role in so using it.

My Experience at Cornell Law School: Legal Realism on Steroids

A good example is my experience as a law student at Cornell University. My contracts professor told us to think of legal rules not as rules, but as mere instruments for obtaining the desired result (“Tools, not rules,” he would say.) My torts professor spent a lot of time telling us that personal injury law should be rewritten to redistribute wealth. My constitutional law professor (a centrist who at Cornell was considered conservative) emphasized over and over again the need to “balance” policy factors in constitutional clauses where the framers and ratifiers already had done the balancing. Almost all professors asked us to judge case results by whether and to what extent they served “good public policy.”

So when Justice Sonya Sotomayor, while still a federal appeals judge, casually told a law school audience that federal appeals courts make law, she was repeating modern academic orthodoxy. That is also why Richard Posner, a key American promoter of the law and economics school and now a federal appeals judge, says a judge ought to, essentially, decide the case first and look at legal materials later.

(Additional note: At the University of Montana, where I spent most of my teaching years, the orthodoxy was pushed right up front. All entering students were funneled into introductory lectures in which a professor informed them that natural law and formalism were “simple minded” and legal realism and its Critical Legal Studies subdivision were more “sophisticated.”)

Legal Realism is Neither Legal Nor Realistic

I figured out early that legal realism is not, strictly speaking, “legal.” Instead of being built on established legal principles, it rests on arbitrary factors such as the political views of the judge or how he thinks about matters not before the court. For example, suppose Mr. Seller contracts to sell a house to Ms. Buyer. Before the the deal closes, the place burns down though no fault of Mr. Seller. Should Ms. Buyer be required to purchase the house? The traditional common law rule was “yes.” A judge may not like that outcome, but he really has no way of knowing what the social results will be if he tries to change it. Traditional judges leave such issues to the legislature. Legal realist judges follow their personal guesses. In fact, a feminist-realist judge might even decide the case for Ms. Buyer because she is a woman, and therefore was not sufficiently “empowered” to negotiate her contact. This is not law. It is guesswork and political favoritism.

I eventually learned that legal realism is not particularly “realistic,” either.

Most people who eventually become law professors, if they practice law at all, do so for a few years in elite firms, government, or politically-driven legal aid shops. Fortunately, I turned down a Wall Street job and chose to enter grass-roots (“Main Street”) law practice. And I stayed there a fairly long time (10-12 years, depending on how you count) before returning to academia.

While in practice I worked with middle- and working-class Americans on ordinary cases, and in state trial courts. Over the years, I represented personal injury clients, a union local, and a municipality. I handled DUIs, divorces, and other lesser litigation. I represented real estate developers and people who purchased from, or sued, real estate developers. I wrote wills and contacts, and counseled small business people and non-profit associations.

What I learned was that for Main Street law, the “public policy” fixation was nonsense. At the grass roots level, judges didn’t purport to make policy guesses.  Instead, they did their best to deduce and apply the law. After I became a professor and had confirmed my observations by study of thousands of cases on many different legal subjects, I wrote an essay explaining my observations. The essay showed how jurisprudence really works for most people most of the time.

But our problem is not how the law works most of the time, but how it works in federal tribunals and in the state supreme courts. That is where judicial activism occurs.

Next week: How do we respond to legal realism’s corruption of our judicial system?

The Principles of the Common Law

The Principles of the Common Law

Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law.

The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity.

That system follows certain identifiable principles—governing values. These principles largely disprove the modern legal academic cant that common law is merely a vehicle for public policy, privilege and power.

The traditional understanding of common law was that it was rooted in the customs of the people, and that the task of a judge was to discover the rules applicable to the case before him, and then apply those rules to the circumstances. During the 20th century, however, a new orthodoxy came to reign in legal academia (primarily law schools) to the effect that judges actually make up the rules of common law as they go along. In other words, judges are inevitably mini-legislators who, under cover of applying precedent, often create rules and results to promote their own opinions of the best “public policy.” You may recall that Justice Sotomayor indirectly expressed this view shortly before she was confirmed to the Supreme Court.

This orthodoxy (so-called “legal realism”) is advanced as a sort of self-fulfilling prophesy for those who promote judicial activism—i.e., those who want judges to be maxi-legislators.

A more extreme outgrowth of the 20th century orthodoxy was that common law decisions are arbitrary and that common law rules are so malleable they really don’t amount to true rules at all. The course of the common law was said to be “indeterminate” and based ultimately on mere power. This view proved convenient to Marxists and others who wished to discredit the judicial system.

In 1992, my treatise, Modern Law of Deeds to Real Property was published. The book was written during the year I served as a visiting law professor at the University of Utah.

The publisher was Little, Brown and Co.—then an old-school legal publishing firm that had produced a line of classic treatises extending back to the early 19th century. Joseph Story, the great Supreme Court justice and legal scholar, wrote for Little, Brown.

Anyway, the law of property deeds is mostly common law aided by statutes usually written to supplement (rather than wholly displace) common law. Accordingly, a large portion of Modern Law of Deeds consisted of the distillation of rules and principles from hundreds of cases.

Real property was only one of the common law legal fields I had studied intensively. I had also practiced, taught, and/or researched in the law of remedies, contracts, oil and gas, homeowners associations, torts, trusts, wills, agency, and fiduciary relationships. And I had taught and written in legal history. This is a far greater range of topics (particularly common law topics) than most law professors pursue. Let’s just say I did not spend much time going out for drinks.

Perhaps I could be charged with dillettantism, but for better or worse by the time I wrote my book I had read thousands of case decisions. At some point I became convinced that the modern orthodoxy about the common law was wrong.

I concluded that, as a practical matter, even most modern judges do not invent rules to promote public policies or to satisfy their power lust. The traditional view was the one closest to the truth: In the real world, judges, especially judges on trial courts and intermediate appellate courts, seek justice. They usually “discover” rules by deducing them from custom, practice, precedent, and a limited number of fixed principles. This occurs even in some cases in which they feel compelled to justify the result by reciting public policy.

So I devoted the last chapter of my book—Chapter 19—to explaining those principles.

I wish I could say the chapter was met with vigorous debate. I can’t. As has happened other times during my career, my conclusions were greeted with silence. And although in many other instances, the silence has ended in adoption (with or without attribution), in this instance it did not.

No doubt there were several reasons for this, but I think one was that very soon after my book came out, Little, Brown and Co. sold its legal division to Aspen Publishing. Aspen promptly pulled all the Little, Brown treatises off the market. Shortly after my book appeared it was out of print—among the last of a distinguished line. It paid me virtually no royalties and, what is more important, very few people read it.

But at least I have the copyright, and Chapter 19 of Modern Law of Deeds to Real Property has been buried long enough. This link provides Internet access to that chapter. The language is technical, and most readers will find it tough going. But I still believe it is a more accurate description of the principles of Anglo-American common law than the theories widely propagated in law schools today.

Problems in the Recess Appointments Case (Even though Rob was cited again)

Problems in the Recess Appointments Case (Even though Rob was cited again)

2009 RGN(This article originally appeared in The American Thinker.)

I applaud the result of the recess appointments case and I am happy to have been cited again in a Supreme Court opinion (this time by Justice Scalia). But in several respects the case exemplifies what is wrong with constitutional jurisprudence today.

In National Labor Relations Board v. Noel Canning, the Court was unanimous in holding that certain presidential appointments to the National Labor Relations Board did not qualify as proper recess appointments. But it otherwise split 5-4, with Justice Breyer writing the majority opinion and Justice Scalia the concurrence.

The majority opinion addressed three issues: (1) whether the constitutional phrase “the Recess” could apply to short breaks in the middle of a session, (2) whether to “happen” during a recess the vacancy had to arise during the recess or whether it could be a carry-over vacancy from earlier, and (3) whether the Senate was in session or recess for constitutional purposes when it carried out nominal “pro forma” sessions.

To decide the case as the majority needed to, it was necessary only to conclude as the majority ultimately did: the rules of the Senate control its own sessions. In the normal course of legislative proceeding, if the Senate says it is in session, then the Senate is in session. So there could be no recess appointment.

Yet the majority first dealt unnecessarily with the other two issues. Courts are not supposed to pontificate on legal issues unnecessarily.

That was the first problem. The second problem was that the Court relied almost exclusively on post-ratification evidence to determine the meaning of “the Recess” and “happen.” That is reading history backwards. Post-Founding events are rarely reliable guides to Founding-Era meaning because post-Founding events hadn’t happened yet. Duh. Yet the Court, like many legal writers, repeatedly resorts to events that could not have been part of the ratification-era understanding because they were years, even decades, in the future.

To be sure, you can justify considering later practice when the Founding-Era meaning is truly ambiguous. (This is sometimes called “liquidation,” which means “clarification.”) But in this instance, the Founding-Era meaning certainly is not ambiguous.

The third problem was that the majority simply ignored the tidal-force of the evidence on the meaning of “the Recess” and “happen.” Beyond reasonable doubt, “the Recess” as the Constitution uses the term means only the intersession recess. Beyond reasonable doubt, “happen” means “occur,” “arise.” It does not mean “continue.” By the way, Justice Breyer downplayed some of this evidence by claiming that the Founders didn’t know of intra-session breaks (other than the formal “the Recess”), but this is inaccurate.

The fourth problem is that the majority adopted what it called a “functional” balancing-type test to determine what intra-session breaks did and did not qualify as “the Recess.” Justice Breyer distinguished this from what he disparagingly called a “formalistic” approach. Thus, he told us that three days was too short to be “the Recess,” that there was a “presumption” that less than 10 days was too short, etc. He left the details to be balanced over and over again, perhaps interminably, in future litigation.

Justice Breyer is a very bright man (a former Harvard law professor), and in his constitutional opinions he resorts a great deal to such “functional” and “balancing” tests. At some point, though, he should understand that constitutions and laws are written mostly for people not smart enough to teach at Harvard. We need bright lines. We need formalism. All indications are that in the Recess Appointments Clause, as in most other constitutional provisions, formalism is what the Founders intended we should have. It is what the American people adopted. That means in interpreting a phrase like “the Recess of the Senate” as it applies to a legislative body, we should construe it consistently with contemporaneous legislative practice.

(Interestingly enough, in deciding that pro forma sessions were sufficient to break up recesses, Justice Breyer did return to formalism.)

Also, a quibble with the concurrence: Justice Scalia’s opinion understated the force of the argument on the meaning of “happen.” I provided numerous examples in the second part of the article he cited earlier in his opinion, but for some reason Scalia’s concurrence didn’t pick up on them. Instead, he got bogged down reading history backwards — reciting mostly occurrences from after the Founding.

Since the Court’s misinterpretation of “the Recess” and “happen” were unnecessary to the result, they should be treated as pure dicta, and therefore not binding on future Courts.  A panel of future justices, less clever but wiser, can then more readily correct the error.