Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Joshua Kleinfeld, Professor of Law at Northwestern Pritzker School of Law. Professor Kleinfeld teaches and writes in legal and political philosophy; legislations and statutory interpretation; and criminal law and procedure. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Kleinfeld, what is legal realism? Where did it come from? Who were or are its main proponents? I look at legal realism historically. So we have to understand it in the context of its time. Let's think about law in, say the early 19th century when Abraham Lincoln was getting his legal education. Law at that time was not understood as an organized body of knowledge that you went to school to learn. It wasn't like becoming a philosopher, or a doctor, or something like that, it was a craft. It was a little like becoming a woodworker, you go and apprentice with someone who knows how to do woodworking and you learn the craft. Likewise, lawyers at that time, like Abraham Lincoln himself, went in apprentice with more experienced lawyers and kind of got the hang of it over time, they did some reading. They might take an occasional class or two on the off side, but there wasn't an organized body of knowledge that they were trying to systematically absorb. What happened was that in the middle of the 19th century, the first American law schools were founded. As they were founded, there was a flush of enthusiasm for the idea of law as an organized body of knowledge. Every bit the organized body of knowledge that theology was at the time, or philosophy, or history, or whatever other academic subjects. The hero of that era was Christopher Columbus Langdell. And his notion was that law was actually a logical deductive system, an inferential system. The cases contained premises and if you reasoned correctly from those premises, you could just arrive at correct answers. You could know what the law requires, and there was a certainty to it, just as when you do proofs in geometry, if you do the reasoning correctly, your answer is just right or wrong. It's not a policy judgment, and it's not subjective, it's objective. That was Langdell's conception of how the law could work. And so, there was a flush of enthusiasm led by Langdell, who was the first dean of Harvard Law School, for the idea of law as a body of deductive science. The great dissenter from that tradition, that tradition is known as legal formalism, was Oliver Wendell Holmes. Oliver Wendell Holmes Jr. His father Oliver Wendell Holmes Sr. was a great poet. But Oliver Wendell Holmes Jr. was a great jurist. He became a judge on the Supreme Court of Massachusetts and eventually a justice on the US Supreme Court. And it was his conviction that this is a false picture of law, that the doctrine in which the law speaks is often indeterminate or open-ended. And what fills the gaps in the doctrine of the open-ended spaces of the doctrine are policy judgments based on expediency, judgment, convictions of all kinds. He thought that in addition, the formalist picture of the law besides exaggerating the extent to which law is certain, or deductive, or could ever be a science and diminishing the extent to which laws are informed by considerations of policy. He also thought that the formalist conception of the law was too inflated. It looked at law as this timeless embodiment of moral principles. And he was a moral skeptic, Holmes was a moral skeptic. He thought that most moral claims were just claims of opinion, pretending to be objective truths and to look at the law as the sort of embodiment of timeless moral principles, made it harder, not easier to engage in the sensible policy decision making that we should engage in. So he said, "The future of law is not the black-letter man, the doctrinal lawyer. It is the economist." A very pressured statement. He made that statement in a famous essay called, The Path of the Law in 1897. Law and economics was about 70 years away, but he saw it coming. So, Holmes was a sort of proto realist, he was the great dissenter from legal formalism. And he was a hero of the later realist, but that wasn't realism in its heyday. Realism in its heyday was the 1930s with Karl Llewellyn and Jerome Frank, and they were a group of legal theorists and law professors. They were also a group of judges. And I think very importantly, they were officials in the New Deal. They were some of the people who were bringing the new administrative state into being, and there is an intimate connection between legal realism as a philosophy of law and the creation of the administrative state in the course of the New Deal. In one of Llewellyn's most famous essays on the subject, he started with the distinction between paper rules and real rules. So what's a paper rule? Well, outside my office in Chicago, there's an eight lane divided highway called Lake Shore Drive, which is one of the principal North, South arteries in the city of Chicago. And unsurprisingly, in a major city, and an eight lane divided highway, people drive pretty fast on that road. It is totally normal to see people driving 70 on that road. But the posted speed limit throughout almost its entire length is 40. Do police stop people for driving 45, or 50, or 55, or even 60? No. What is the real speed limit? What will actually get you stopped by police? I don't know exactly, maybe it's 70, maybe it's 80. There's some threshold, but it sure isn't the paper rule. And Llewellyn and his cohort were intensely sensitive to how that phenomenon recurs throughout all law, all of the time with judges, and police, and executive officials. There are these paper rules, but what really gives them substance and meaning is the way they are understood and applied by legal officials. And so there was this intense skepticism, carrying forward Holmes's skepticism with legal doctrine. Their fundamental conviction is that legal doctrine does not determine cases, psychological factors determine cases, policy considerations determine cases. Cases should be informed by good policy considerations, but legal doctrine is indeterminate and uncertain, and judges and lawyers exaggerate it. So they thought. With the emphasis on policy and the de-emphasis on doctrine, came a variety of other convictions or impulses of mind in the same general direction, sort of a family of ideas in the same general direction. They tended to view law as a policy tool, instead of as the embodiment of timeless principles. It was an instrumental view of law, law as an instrument for accomplishing good policy. If legal judgments are essentially policy judgments, then we should make sure that the judges and their judgments are as informed by good policy considerations as possible. And it gets in the way, if they think of themselves as upholding timeless principles of freedom of contract, or timeless principles of economic liberty, or timeless principles of any sort whatsoever. Timeless principles or constitutional principles about the limited role of the federal government in the states or in individual lives. And if they were against all those manner, they were about making the law amenable to making the law an instrument of good policy. So, that was sort of a fellow traveler to the doctrinal skepticism. With it went again, a sort of moral skepticism that we will recognize from the legal positivist, none of them thought that ... Or rarely did the legal realist embrace a moralized picture of what it is the law is trying to uphold or to do, they would not have liked Blackstone’s picture of common law as natural law. Although it's curious, because once you start looking at the law as a flexible instrument of policy, and legal judgments as effectively policy judgments, why not think that what makes good policy are considerations of human welfare and justice that are fundamentally moral considerations? So it's strange that Holmes, and Llewellyn, and other members of the realist camp were moral skeptics when it seems much more natural for them to be natural lawyers. Be that as it may, they were. So, how should we define legal realism in light of all this history, and nuance, and these various impulses? I think what is really key is this idea that law isn't just doctrine. It's what officials do, that the doctrine is indeterminate, and that we should focus on consequences, that we should use the law instrumentally to secure good policy consequences. So if I was trying my hand at a definition, I'd say something like this: Realism looks at the law as a malleable set of policy tools aimed at pushing officials, including judges, toward good policy outcomes. And another definition you might use is that legal realism is the propulsive application of law as a malleable tool of policy, manifested in the actions of governmental officials and evaluated by its consequences. Something along those lines, something that emphasizes doctrine’s indeterminacy, the primacy of policy, considerations of good policy and the orientation to consequences. It seems to me like the key things to assemble in order to craft a good definition of legal realism. Can you talk more about why legal realism was the chosen theory to justify government activity during the New Deal Era? There is a connection between legal realism and the New Deal. First of all, just a lot of the lawyers who staffed FDRs administration and helped build the New Deal order, the administrative order of the merging modern government of the United States, were devoted realists. One of the greatest of them was a man named Jerome Frank. Jerome Frank, before he became a government official wrote a book called Law and the Modern Mind. It must be the most provocative of all of the early realist writings. What Jerome Frank said was ... He was very interested in Freudian psychoanalysis. And he was interested in law. And what he suggested was that judges pretend that doctrine determines cases because they're emotionally immature, they're looking for a father figure, and they turn to the law to be their father figure. And if they could come into emotional maturity, they would see that the law is not their father, that they themselves must be the father. That the law won't give them answers, and that it is their role. They suffer from a sort of false consciousness. They think that the law gives them determinate answers, but in fact, what they're doing is just reflecting their own emotional immaturity. And what it means to be emotionally mature, is to realize that you are responsible for the consequences of your own decisions. So, you could see this as the legal realist precepts, the belief that doctrine doesn't determine case outcomes, that there's a strong role of policy taken in an extraordinarily provocative and even offensive Freudian direction. I mean, imagine someone said that of one of your own convictions, "Oh, you believe in ..." I don't know what you believe in. The free market. You believe in the free market because you're emotionally immature and you're looking for a father figure and ta da da da da. Some other conviction you have, that Barack Obama was a great president, that Barack Obama was a terrible president. Oh, you believe that because you're emotionally immature and looking for a father figure. I mean, anyone would experience this as an attack on their capacity to not just their beliefs, but their capacity to form beliefs in a way that deserves conviction. It's that kind of sting of the false consciousness argument. Ironically, Jerome Frank later became a judge, and I don't actually know if he moderated his views at that time. Between being a radical Freudian legal realist and a judge, he was a major official in FDR's New Deal government. And after his tenure in government, he wrote an essay about why the legal realists were well suited to the work of the New Deal. What he essentially argued, is that in order to accomplish the New Deal and to build the modern administrative state a lot of long standing understandings of American law had to be overturned, the limitations of the federal government, the meaning of the Commerce Clause, the kinds of things that were subject to federal regulation versus state regulation, or the kinds of things that were subject to government regulation at all. And various constitutional understandings having to do with freedom of contract or various kinds of economic liberties, all of it needed to be overturned in order to make room for the new order. People who had a realist frame of mind, he argued, were well suited to be in this party of progress. They didn't see the traditional law that they had inherited from England, or from the first century and a half of American history as something to be venerated, or as the embodiment of timeless principles to be preserved. And they were comfortable with relatively instrumentalist arguments designed to overturn existing institutions and existing understandings. They didn't feel that the arguments necessarily needed to be conceptually perfect if they were well suited to the purpose of getting good policies in place. So, treating the law as an instrument of good policy, the de-venerating of the law, looking at it not as the bearer of timeless principles, but as a set of dictates and policies that could be good or bad and might need to be reformed or overthrown. All of that was just very useful for the kind of work that the New Deal needed to accomplish. And so, he argued that the lawyers of the old order, the lawyers who hadn't sort of drank the realist Kool-Aid, but who are staffing occasionally FDR's administration found themselves struggling to figure out how to justify the reforms they thought were necessary in light of the old legal order, while the realist easily overcame those internal struggles, because they found the old order much easier to overturn. One might wonder, is there a deeper link than that? I mean, Jerome Frank, true to his psychologizing history, saw the connection between the legal realists and the New Dealers as sort of a connection of personality. There's a sort of psychology of progress that says, "The old is not sacred, we can reform it, we should reform it for instrumental reasons, with an instrumental frame of mind that made it relatively easy for progress to find its way forward." Is there a deeper connection than that? Is there some sense in which the New Deal is built on the idea that law is indeterminate? That it's a flexible instrument of policy? Color me skeptical. I'm not sure there's anything greater than a coincidence of personnel that the early realists were also the kind of progressive technocrats who were well suited to staffing the New Deal administrative state, and that their mindset made it relatively easy to overturn the old order in favor of the new. I think that might be all there is to it, but I guess it's conceivable that there's some deeper link that I don't presently see. Is legal realism still influential? Do you still see it jurisprudence or in legal practice or in academia? When I was first in ... I was a 1L in law school, I had to write my first legal memo. And it was supposed to be about whether a certain new initiative by the federal government fell under the Commerce Clause power or did not. We've been reading Wickard v. Filburn, and Heart of Atlanta, and Katzenbach, and the other cases in the Commerce Clause tradition. I was supposed to write something consistent with that tradition. So, I turned in my memo as a first semester 1L, and my professor said, "You're writing like a philosopher." There's a section on what is commerce, sort of about the nature of commerce. And then there's a section about what is interstate, about the nature of interstate and then you put them together, and you say, "That is what interstate commerce is." And then you ask whether this intervention, this statute, would fall under that definition of interstate commerce. And I said, "Well, yeah, I did that. What else am I supposed to do?" He said, "You're engaging in this as pure conceptual analysis. That's not what American lawyers do. American lawyers look at the consequences. The question for an American lawyer is what are the consequences of reading the Commerce Clause power in one direction or another?" At the time, I was baffled, and befuddled. But I was aware that this was important. And fundamentally, what my professor was reflecting was a conviction that has been with American law ever since the realists, 100 years now, of the conviction that when you're trying to understand what the law requires, you don't just do conceptual analysis, you don't just look at the "nature of interstate commerce." Instead, you think, "If I decide the case in direction A, the federal government can't regulate in this area, it's much less powerful. Is that a desirable outcome? If I regulate in direction B, if I read the Commerce Clause power in direction B, the federal government is perhaps more able to regulate in this area, is that desirable?" You focus on consequences, and whether they are desirable from a policy point of view. So, my professor was teaching me to be a good legal realist, and it was a helpful lesson, even if I don't altogether agree with it now. My professor's lesson to me goes to show something that I think is important to touch on, which is that there's a sense in which we're all realist now, there's a sense in which realism just conquered American law. Started with Holmes, and it rose to its kind of apex in the 1930s. But it conquered American law. When you go to law school in America, you don't just talk about what are the rules? What's the doctrine? You have a lot of discussion of, what is good policy? What are good consequences of these rules? And there's a lot of debate and disagreement about the rules. There's a lot of back and forth about what the best interpretation of the Commerce Clause power is, or some statute, or some administrative regulation based on what the consequences in the world would be. All of that reflects a highly realist education, not just a realist education, but a realist legal system, because you hear those same kinds of arguments unfolding in courtrooms all over America. And you see them unfolding in the majority and dissenting opinions being issued from our courts. All of it bears the imprint of legal realism. If you want to see what a society is like before or absent legal realism, go study law in France, or to a lesser extent in Germany and Britain. The French Supreme Court does not have a majority opinion and a dissenting opinion. And it does not engage in long chains of reasoning over multiple pages defending its conclusions about the law. The opinions of the French supreme court are two or three pages, they simply state the issue, the facts, the law and the conclusion. They have no dissent, they do not permit dissents. It would be the rare French law student who could name a single member of the French Supreme Court, because their individual personalities are not thought to matter and they are just sort of a mouthpiece of the law. In standard French classrooms and law, there is no policy discussion. There is a description of what the rules or what the doctrine is. And it's not normal to talk about what constitutes good policy or whether the rules are sensible or not sensible, or how they're best interpreted. And you can still get an audible gasp from your students, if you suggest that the Court got it wrong. So that absent, and to a lesser extent, you find similar things in German and British classrooms. So if you're wondering if what law would look like, what American law would look like if we suppressed policy considerations to this degree, if we treated the law as a more or less objective system, well, it would look roughly like European law does today. And that's interesting on a number of levels. I mean, one thing is it suggests that it's not impossible for the law to be relatively formalistic. I mean, you might think that the French/British/German approach to the law is just an illusion. If so, it's a pretty comprehensive illusion that they're keeping up at great pains for a long period of time. It might be more realistic to say that, or more plausible to say, that it's not entirely an illusion, that the realist picture of the law, not only describes certain inevitable features of the law, but also pushes law in a more policy-oriented direction, and that you can think that's good or bad. Another facet of kind of realism's conquest is the fact that so many of the big ideas that have swept through American law in the decades since realism have been essentially extensions or radicalization of the realist thesis. So take Law and Economics. I mean, what is Law and Economics, accept the idea that law is a set of malleable policy tools that should be directed to some good policy ends, they have a particular set of tools, empirical tools, and market-oriented tools for figuring out what the best ends are? So, they engage in a kind of welfarist and utilitarian policy analysis, and then they say, "Well, law should accomplish those things, should accomplish those welfare maximizing things." So, Law and Economics is just exactly what Holmes predicted in the essay that might have marked the beginning of realism as a theoretical point of view. Or take Critical Legal Studies. Critical Legal Studies also insists on the indeterminacy of legal doctrine, and it says it's not just modestly indeterminate, it's not just under determinant, it's totally illusion. Legal doctrine is a veil that has pulled over, not just policy, but power. I mean, so the legal realists emphasized that legal doctrine was incomplete or indeterminate, and it was disguising policy decisions. The Critical Legal Studies movement said that the law is radically indeterminate, the doctrine is pure illusion. And what it's covering up is power relations, which you can see as a sort of amped up version, a radicalization of the fundamental doctrines of legal realism. Is there any significant counter movement to legal realism? The biggest movement in American law over the last century to really resist legal realism is the Textualist and Originalist movement, which is increasingly proud to identify itself as a formalist movement, and it is animated by the conviction, that for law to secure some of the benefits of a rule of law system, a constitutionally-disciplined system, and a system in which the power belongs primarily to the elected branches, judges have to be a little more formalist than they are. They have to be more concerned with doctrine, and they have to treat doctrine as more determinative than they do when their hands are completely untied by the full force of legal realism, or Law and Economics, or Critical Legal Studies. The leaders of the Textualist and Originalist movement, the modern movement in legal formalism, people like Professor Bork or Justice Scalia are not fools, they don't think it's possible or even desirable to make American law resemble French law with its pretensions to perfect objectivity. But they do think that the realist movement has gotten in some sense out of hand, and that it has come to undermine some of the values for which we have a legal system in the first place. And so they're anxious to restore some of the formalism that makes law what it is. Justice Scalia has this wonderful line in a matter of interpretation, he says, "Long live formalism, it is what gives us a government of laws rather than of men." And I would say that is the clarion rallying cry of the modern formalist movement, which is a conservative movement in resistance to what is seen as the liberal depredations, or progressive depredations of judges with their hands untied. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!