Legal realism and legal doctrine.

• Author: Leiter, Brian
• Position: The Constraint of Legal Doctrine

The American Legal Realists (1) did not reject doctrine, because they did not reject the idea that judges decide cases in accordance with normative standards of some kind: "doctrine," after all, is just a normative standard about what should be done, and not necessarily one formulated and made explicit by a statute, a court, or a treatise. A judge who decides cases based on the norm "this breach of contract is efficient" still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely, and it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this Symposium show, precisely because the realist law reform movement was successful in so many arenas.

All of these points were driven home to me almost twenty years ago when I was teaching at the University of Texas and had the opportunity to talk at some length with my colleague, the late great Professor Charles Alan Wright, then the President of the American Law Institute (ALI) and the senior author of perhaps the most important and influential treatise in American law of the past half-century, Federal Practice and Procedure, (2) Wright seemed a quintessential "doctrinalist," perhaps the greatest and most influential of his generation, and yet he was also an unabashed Legal Realist. Understanding that apparently puzzling combination of attributes is essential to understanding the real essence of American Legal Realism.

Wright's self-description as a Legal Realist must, of course, seem strange to anyone who recalls how the Legal Realists of the 1920s greeted the newly created American Law Institute and its proposed Restatements of the Law. The great torts scholar and reformer Leon Green declared in 1928 that "[t]he undertaking to restate the rules and principles developed by the English and American courts finds in the field of torts a most hopeless task." (3) Charles Clark, for whom Wright later clerked on the U.S. Court of Appeals for the Second Circuit, denounced the Restatement of the Law of Contracts as having "the rigidity of a code ... without the opportunity for reform and advance which a code affords." (4) And no student of Legal Realism or the American Law Institute can forget Yale psychologist Edward Robinson's impassioned denunciation in the pages of the Yale Law Journal in 1934:

And so the American Law Institute has thought that it can help simpleminded lawyers by giving an artificial and arbitrary picture of the principles in terms of which human disputes are supposed to be settled.... .... [But s]uch bodies of logically consistent doctrines as those formulated by the experts of the American Law Institute are obviously not to be considered as efforts to understand the legal institution as it is. When one considers these "restatements" of the common law and how they are being formulated, one remembers how the expert theologians got together in the Council of Nicaea and decided by a vote the nature of the Trinity. There is a difference between the two occasions. The church fathers had far more power than does the Law Institute to enforce belief in their conclusion. (5) Notwithstanding the vituperative rhetoric of many early Legal Realists, (6) it is not inexplicable why Wright, the first law professor to lead the ALI, a professed Realist and a protege of Judge Clark, would assume its mantle.

The beginnings of an answer can be found in one of the seminal documents of Legal Realism, Herman Oliphant's 1927 address as President of the Association of American Law Schools, tellingly titled "A Return to Stare Decisis." (7) The title is notable precisely because a "return" to the binding force of precedents would be a return to a regime in which the holdings of earlier courts--their articulations of doctrine--actually did bind the decisions of later courts on relevantly similar facts, which was precisely Oliphant's aspiration. Oliphant was worried that the legal doctrines promulgated by courts and scholars had become too general and abstract, ignoring the particular factual contexts (or "situation-types," as Realists called them) in which the original disputes arose. (8) The result was that these doctrines no longer had any value for judges in later cases, who simply "respond to the stimulus of the facts in the concrete cases before them rather than to the stimulus of over-general and outworn abstractions in [prior] opinions and treatises." (9) Oliphant argued that a meaningful doctrine of stare decisis could be restored by making legal doctrines more fact-specific and tailoring them to the particular factual scenarios which brought forth judicial hunches about fairness and justice. So, for example, instead of pretending that there is a single, general rule about the enforceability of contractual promises not...