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Brian Tamanaha on "Popular Myths About the Legal Realists"

At Balkinization, Brian Tamanaha has an interesting post on common misunderstandings of Legal Realists. It resolves some contradictions that I had never understood (in part, I had taken Jerome Frank, who is a bit of an outlier, as a typical Realist).

Llewellyn's point was that the Realists were indeed critical of mechanistic accounts of judicial decision-making—as deductive and exclusively rule-focused—but they did not commit the opposite error of suggesting that judging is purely subjective and not legally constrained. Rather, the Realists brought attention to other stabilizing aspects of the craft of law and judicial decision-making besides just the legal rules. While they denied that law was certain to the extent that formalism portrayed, they agreed that there was a great deal of certainty and predictability in law (though not attributable to the legal rules alone). They also argued that in some cases policy decisions were called for and should be done openly by judges, although they recognized that many cases were routine and determined by the legal rules.

Richard Riley (mail):
I agree that Brian Tamanaha's post about the Realists is interesting. (Orin Kerr thinks so too and blogged about it right here on the VC yesterday!)

Tamanaha's discussion of how the later Critical Legal Studies folks differed from the Realists, yet were clearly informed the Realist approach, is very good. I've always seen similarities between Realists and Crits but they certainly aren't the same thing, and I think Tamanaha puts his finger on a major distinction. Tamanaha notes Llewellyn was "proud to be a lawyer" and was proud of his work on the Uniform Commercial Code - two sources of pride that it's fair to say the more nihilistic (and simply more lefty) Crits didn't share.

Also, Tamanaha speaks of Critical Legal Studies in the past tense, as I have done here. Is that fair? Are there no more real Crits left? Their intellectual progeny are certainly strong in the law schools but what about the Crits themselves?
2.16.2007 3:02pm
John Fee (mail):
This distinction between critical legal studies and realism is fair enough. However, taken with Orin's earlier post, which shows how the legal realists unfairly characterized Langdell as the archetypal formalist -- by which they defined legal realism in contrast -- this might cause one to wonder what it was that legal realists contributed, if anything? Did they only bring a change in the frequency of emphasis on policy as compared to the frequency of emphasis on determinate rules of law, given that both formalists and realists respected both?
2.16.2007 4:43pm