Ben Stein's Diary

The American Spectator, March/April 2003 | Go to article overview

Ben Stein's Diary


SUNDAY

Beverly Hills

Here I am watching the "peace" demonstrators all around the world, and I am once again struck by one of the main observations of my life. I call it "political realism." Here is how it goes. It says that the political attitudes and behavior of most people are based on their personalities, childhoods, fears, angers, lacks of confidence, and feelings of strength. What comes out of their mouths is couched in terms of public policies such as war, peace, capitalism, socialism, dictatorship, gun control, gun ownership, right to life, pro-death, but it is really all about the working out of personality issues.

I came to this idea in what I think you might find an interesting way. Back at Yale Law School (class of 1970, "Bulldog, Bulldog, Bow Wow Wow"), I was privileged to study a tiny bit of what was called "legal realism." This was and is the most important analytical tool in the history of jurisprudence, in my humble opinion. The theory of legal realism, developed by such geniuses as Lasswell, McDougal, and Llewellyn, the first two of whom were at Yale, said that judges made up their minds about cases based on their own personal views and prejudices and then clothed their decisions with "precedents" and "statutes" to make it look as if they were impartially reading some "brooding omnipresence in the sky" called law. That is, the judges made up their minds about a case because they liked the plaintiff's legs or went to the same country club as the defendant or had a similar thing happen to them once in college, and then they made up a lot of interesting fake reasons for why they reached their decisions.

This analysis continued that this had to be true because in any important legal case at the appellate level, there will be ample precedent on both sides of the issue, and judges can always find some reason to apply some bits of it to clothe the nakedness of their own prejudices.

Legal realism was further refined by the late, great Alex Bickel and the still living and still great Robert Bork to say that if judges could find even the faintest shred or shadow of a precedent to "legitimize" their own prejudices, they would do so and act as if they were reaching a conclusion any sane and learned judge would reach. The great examples of this are the abortion decisions in which the Court found a right of privacy that covered a right to murder a fetus and claimed that there were "penumbras" and "emanations" from the Fourth Amendment and the Fourteenth Amendment, when really there was nothing to legalize abortion.

In my own extensive experience in securities law, I also find this to be true. Judges with a feeling of kinship with the brokers find for the brokers, and judges with a feeling of kinship with the consumers find for the consumers and stockowners.

My close friend in law school, the flamboyant and spellbinding Duncan Kennedy, later revised legal realism and created his own field which he calls "critical legal studies." It holds that judges decide cases based on their own class interests, and these tend almost always to be on the side of the bosses. Duncan has sadly vanished from my life, but some years ago I read a horrifyingly long essay by him attacking the "law and economics" approach to jurisprudence, which approach basically says decisions should be based on what is sound economics. Duncan said it was a fascinating aspect of "law and economics" that it always came down on the side of the bosses.

Duncan's politics and mine could not be further apart at this point, but his demolition of "law and economics" was provocative, to say the least.

Anyway, back to the icky peace demonstrators and what I call political realism. Political realism says that people in a free society make up their minds about an issue based on whether or not they hate their fathers, whether or not they are sexually oriented toward the same sex, whether or not they feel sexually confident, whether or not they want to win the love of their fathers, and then they make up a rationale based on public policy to justify whatever it is they are doing. …

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