Understanding Legal Realism

By Tamanaha, Brian Z. | Texas Law Review, March 2009 | Go to article overview

Understanding Legal Realism


Tamanaha, Brian Z., Texas Law Review


The emergence of legal realism in the early twentieth century is widely seen as a pivotal event in the U.S. legal tradition. A legal theorist recently attested to "the enormous influence Legal Realism has exercised upon American law and legal education over the last sixty years."1 Above all else, legal realism is credited with bringing about a revolutionary shift in views about judging in the American legal tradition. The standard account, as put by a legal historian, is this:

Formalist judges of the 1895-1937 period assumed that law was objective, unchanging, extrinsic to the social climate, and, above all, different from and superior to politics. . . .

The Legal Realists of the 1920s and '30s, tutored by Holmes, Pound, and Cardozo, devastated these assumptions .... They sought to weaken, if not dissolve, the law-politics dichotomy, by showing that the act of judging was not impersonal or mechanistic, but rather was necessarily infected by the judges' personal values.2

This conventional narrative about the Realists, told many times over, is now virtually taken for granted. A recent book by political scientists, for example, asserted:

Until the twentieth century, most lawyers and scholars believed that judging was a mechanistic enterprise in which judges applied the law and rendered decisions without recourse to their own ideological or policy preferences .... In the 1920s, however, a group of jurists and legal philosophers, known collectively as "legal realists," recognized that judicial discretion was quite broad and that often the law did not mandate a particular result.3

A recent article on judging reiterated the point:

According to the formalists, judges apply the governing law to the facts of a case in a logical, mechanical, and deliberative way. . . . For the realists [on the other hand], the judge "decides by feeling, and not by judgment; by 'hunching' and not by ratiocination" and later uses deliberative faculties "not only to justify that intuition to himself, but to make it pass muster."4

Much of this conventional account is misleading. Legal realism is largely misunderstood because the work of the Realists is interpreted within a false set of historical and theoretical assumptions. The aim of this exploration is not only to produce a more accurate account of the Realists, but more so to rescue realistic views about judging from the clutches of this misunderstanding. The term realism, as it is used in this Article, has two integrally conjoined aspects - a skeptical aspect and a rule-bound aspect. Realism refers to an awareness of the flaws, limitations, and openness of law - an awareness that judges must sometimes make choices, that they can manipulate legal rules and precedents, and that they can be influenced by their political and moral views and by their personal biases (the skeptical aspect). But realism about law and judging also conditions this more skeptical awareness with the understanding that legal rules nonetheless can work; that judges can abide by and apply the law; that there are practicerelated, social, and institutional factors that constrain judges; and that judges can render generally predictable, legally based decisions (the rule-bound aspect). A realistic view holds that the rule-bound aspect of judging can function reliably notwithstanding the challenges presented by the skepticisminducing side, although this is an achievement that must be earned, is never perfectly achieved, and is never guaranteed.

The seminal formulation of this view of judging is The Nature of the Judicial Process, in which Cardozo explicitly invoked the term realism in this balanced sense:

Those, I think, are the conclusions to which a sense of realism must lead us. No doubt there is a field within which judicial judgment moves untrammeled by fixed principles. Obscurity of statute or of precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function. …

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