The constraint of legal doctrine.

• Author: Balganesh, Shyamkrishna
• Position: FOREWORD

INTRODUCTION: THE "MYTH" OF DOCTRINAL CONSTRAINT I. The Multiple Constraints of Legal Doctrine A. Mechanistic Constraint B. Structural Constraint C. Conventionalist Constraint (Versus Rationalization) II. The Constraint of Legal Doctrine in Different Areas of the Law III. John Dickinson on the Constraint of Legal Rules INTRODUCTION: THE "MYTH" OF DOCTRINAL CONSTRAINT

As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. (1) The phrase "we are all realists now" is treated as cliche precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. (2) While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is "more malleable, less determinate, and less causal of judicial outcomes" than is traditionally presumed. (3) Judges in this view are taken to decide cases based on what they consider "fair" under the circumstances, "rather than on the basis of the applicable rules of law." (4) Judicial reasoning, the Realists argued, was rarely ever the "constrained product of legal doctrine and legal materials alone." (5) A hallmark of Legal Realism was therefore pervasive "skepticism" about the constraining effect of legal doctrine on judicial opinions and scholarly critiques of judge-made law. (6) The constraint of legal doctrine was thus believed to be mythical.

In the many decades since its arrival, the scholarly literature examining the scope, influence, virtues, vices, and varieties of Legal Realism has grown exponentially. (7) Acknowledging the dominance of Legal Realism as a way of thinking, legal academics continue to debate the extent to which the Realists were saying something altogether new, and indeed whether they mischaracterized their predecessors. (8) Despite the voluminous body of literature on Legal Realism, hardly anyone has sought to examine systematically the actual effect of its central premise on the style, form, and substance of legal reasoning undertaken by courts in different doctrinal areas. If legal doctrine does not constrain judicial reasoning (or at best does so minimally), as the Legal Realists claimed, and this reality is widely accepted by all participants in the judicial system, we might expect to see a difference in the way courts approach their task of deciding cases and providing reasons for their decisions. Yet, the fact remains that we simply do not.

In a variety of substantive areas, judicial opinions continue to speak the language of legal doctrine, and legal doctrine remains the "currency" (9) of legal analysis. Judges--at least on the face of things--appear as constrained or unconstrained by legal doctrine today as they appeared to be prior to the influence of Legal Realism. Consider a pair of copyright cases as an example. In 1908, the Supreme Court decided White-Smith Music Publishing Co. v. Apollo Co., and held that a manufacturer of perforated piano rolls did not commit copyright infringement, since the rolls were not "copies" for the purposes of copyright law. (10) In arriving at its conclusion, the Court looked to prior nonbinding case law, legislative intent, its own construction of the statute, and the common understanding of the term "copy." (11) The only express suggestion of constraint in the Court's opinion is its observation--in dicta--that if the prior case law had been of a "binding character" it would have "precludfed] further consideration of the question." (12) Now, contrast this with a case decided by the Court in 2014, American Broadcasting Co. v. Aereo, Inc. (13) The question before the Court was whether a service that re-transmitted free broadcasting content to subscribers over the Internet had committed copyright infringement by engaging in a "public performance" for the purposes of copyright law. (14) In answering the question in the affirmative, the Court justified its conclusion entirely by reference to the legislative history of the statute's definitions of "public" and "perform" and its own reconstruction of Congress's regulatory intent underlying the statute. (15)

The similarity in style and reasoning in the two opinions is stark and real. Both speak the language of formal legal doctrine, both make reference to precedent (when available), both defer to Congressional "intent" and purpose, and both rely as best as possible on the text of the statute. One was crafted in a pre-Realist era and the other well after the dominance of Legal Realism. Their puzzling parallelism highlights the central questions that this Symposium set out to answer: Does legal doctrine in fact continue to "constrain" judicial reasoning, even after almost every participant in the legal system today has come into contact with the central premise of Legal Realism (i.e., the supposed myth of doctrinal constraint)? Are there ways of reconciling courts' post-Realist use of legal doctrine with the core insights of Legal Realism? How uniform--across the law--is this apparent continuity in the use of legal doctrine?

Instead of seeking to answer these questions in the abstract as philosophical inquiries, the Symposium instead chose to have leading legal scholars, each from a different substantive area of law, reflect on the role of legal doctrine in their respective areas of expertise. Our hope was that having scholars reflect on this issue by reference to their own fields of expertise would address the question of "doctrinal constraint" in the American legal system organically and trans-substantively. The areas chosen were drawn from both federal and state law, statutory and common law, and represented areas traditionally characterized as public law and private law.16 * Some scholars chose to reflect on the question by looking at their field as a whole, while others reflected on the issue through specific cases, rules, or problems unique to their particular field.

In what follows, I will begin in Part I by unpacking the various senses in which doctrine might be seen to "constrain" legal and judicial reasoning, the central question that unites the Articles that follow. Part II will summarize some of the key findings on the constraint of legal doctrine that emerge from the Symposium contributions. Part III will then conclude by reminding readers of a now-forgotten, but nonetheless important, piece of scholarship published in this journal that addressed the very question of this Symposium eight decades ago, challenging the extreme version of the Legal Realist claim.

1. THE MULTIPLE CONSTRAINTS OF LEGAL DOCTRINE

   What exactly does it mean for doctrine to "constrain" legal and judicial reasoning? Depending on how widely or narrowly one understands the notion of a constraint, the question becomes either profoundly controversial or singularly uninteresting. In the rest of this Part, I advance three analytically distinct conceptions of what it might mean for legal doctrine to constrain the reasoning employed by judges (and lawyers). The categories identified below admit of some overlap and are often hard to disaggregate in application. Yet, their analytical bases remain fundamentally distinct. Each of these conceptions also finds instantiation--in part, in whole, or in conjunction with others--in the individual articles that follow, though I will not venture to suggest which particular one is at play in each article.

   1. Mechanistic Constraint

      The first, and perhaps most extreme, form of constraint that legal reasoning by judges is sometimes accused of, entails the internalization of the belief that legal rules play a deductive role in adjudication, such that any given legal decision is fully determinable by an applicable rule. In this view, the direct application of a rule to the facts of a dispute is seen to yield a rationally determinate answer.17 Legal reasoning is thus "constrained" by doctrine insofar as that doctrine dictates not just its own applicability, but also individual outcomes upon its actual application. This form of constraint earned the name "mechanical jurisprudence," and was used by the Legal Realists as a pejorative to describe classical legal thinking, that is, Legal Formalism. (18)

      Few, if any, would suggest (or believe) that judges and other actors today feel constrained by legal doctrine in this extreme sense--that is, as "automatons]." (19) It presupposes a belief in both the autonomy of legal reasoning and in the obligatory nature of that autonomy. Indeed, as some have pointed out, this form of constraint is often a caricature rather than an accurate representation of how judicial decisionmaking in any real context actually works. Nonetheless, it...