Legal realist judge
54544853
Realist Lawyers and Realistic Legalists: A Brief Rebuttal to Judge Posner
This short piece suggests that seeming differences between legal realism and what Judge Posner calls the "legalistic approach" are often more a matter of emphasis than substance. In reality, both camps recognize that law does not mechanistically determine outcomes in individual cases, but also that law matters for judicial decision making.
Michael A Livermore
141654270
Methodological Interventions and the Slavery Cases; or, Night Thoughts of a Legal Realist
In thinking about conflicts theory, one comes up against the problem of immoral law. There is no neutral, abstract, predetermined choice rule that can confidently avoid immoral law, if immoral law is arguably applicable. The legal realists were right in supposing that the better the judge, the more disregardful of a rule that threatens to yield an unjust result. This paper briefly examines examples from two significant clusters of cases in this country about which we can say with some confidence that the judges had to face a choice of immoral law. These are cases involving slavery. In the first group are the cases of "sojourners" and other slaves with some legal claim to freedom, whether in the courts of the slave state or away. In the second group are cases about runaways, the "fugitive slaves" that were the subject of harsh federal law. These latter cases were only occasionally conflicts cases proper, notably in cases of conflict between federal law and more protective state law. But the underlying struggle against immoral law is made vivid in them. In the end a realist's rule, one that is not neutral, abstract,or predetermined, may impose itself upon the reluctant mind: the rule of justice in the individual case.
Louise Weinberg
201471838
Fallen Woman (Re)framed: Judge Jean Hortense Norris, New York City 1912 1955
This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris's alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional power, and offer a unique vision of the "fairer sex," she was held to a different standard than her male peers and made to pay the price with her career. In these ways, this Article provides a more complete picture of Jean Norris beyond a shamed and disrobed judge. And it begins to move Judge Norris out of legal history's margins so that she may be remembered as more than mere mugshot in the American imagination.
Mae C Quinn
219650471
Private Troubles and Legal Imagination: Legal Clinics a Radical View
The success of legal clinics is mainly due to the idea that they can give a professionalizing connotation to the degree courses in law, while the evocation of the realist tradition, of law in action, and the reference to social justice seem relegated to the mere function of a legitimising myth. Only if characterized by a precise theoretical option that clearly distinguishes normative text from norm and identifies the hiatus between the two as the space of the jurist, can legal clinics be at the heart of a radical change in legal education. Even the orientation towards social justice is not implicit in any clinical experience. Only by configuring a legal clinic as a laboratory for students to learn how to use legal fantasy to transform the private troubles of marginalized people into claims that can be brought before a judge, does the clinic contribute to these individuals' access to justice.
Emilio Santoro
142286221
Further (Ms. Understanding Legal Realism: Rescuing Judge Anna Moscowitz Kross
This essay responds to Understanding Legal Realism, 87 TEX. LAW REV. 731 (2009) written by my colleague Brian Tamanaha. It joins Tamanaha in his efforts to rethink the, "what," and, "who," of the Legal Realist movement to offer a broader conception of Realism. It argues, however, that his revisioning does not go far enough. Like most other accounts of Legal Realism, it fails to account for the work of women in law. Thus this essay begins a project of seeking to recover the lost contributions of women, including those who served in the community trenches and on the trial court benches in this country, who contributed to the Realist enterprise. In this essay I focus on Judge Anna Moscowitz Kross, one of many women, trained lawyers and others, who I argue was part of a Feminist Legal Realist movement. This essay serves as the first part of a long term book project currently entitled, FEMINIST LEGAL REALISM? REALISTIC WOMEN ON THE BENCHES, IN THE TRENCHES, AND BEYOND.
Mae C Quinn
197645993
Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor
The criticism that a judge has injected her policy preferences into her judicial decision making is just that a criticism. But for years, academics from a variety of disciplines have set forth a rich literature asserting that judges' policy preferences, rather than adhesion to neutral legal principles, determine legal results in close cases. Much of this writing, referred to here as Judicial Political Realism, has been based upon empirical studies which show that a judge's ideology (usually determined by referencing the political party of the judge's appointing president) significantly explains patterns of judicial votes. Not surprisingly, the Judicial Political Realist literature generally has not been warmly received by the practicing bar, judges, and (most) legal academics because most lawyers, judges, and legal academics like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases. Against this background, however, it is interesting to note two recent United States Supreme Court cases in which the Court, or at least some of its Justices, has implicitly appeared to allow the notion that judges are political actors to infiltrate constitutional doctrine. In the first, Republican Party of Minnesota v. White, a Court majority ruled that a state could not prohibit candidates for judicial office from announcing their views on issues that might come before them. For First Amendment purposes, judicial candidates were to be treated no differently than legislative candidates; the voters were entitled to know the candidates' views on the issues and they would be expected to support or oppose a candidate on that basis. As such, the implicit suggestion in White mirrors the judges as political actors critique judges, like legislators, bring political agendas to their service. In the second, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, four Justices, in an opinion authored by Justice Scalia, again appeared to strongly embrace the Judicial Political Realist claim. In Stop the Beach, the four Justices argued that the Court should recognize a doctrine of 'judicial takings, meaning that a change in property rights resulting from a judicial opinion should entitle the aggrieved property owner to the same sort of compensation that a property owner would receive if the change to her rights occurred as a result of legislative enactment. To these Justices, there was no constitutional difference between judicial and legislative action for purposes of the Takings Clause. As such, even more graphically than White, the judicial takings theory advanced in Stop the Beach sets forth the vision of judges as political actors. Judicial decisions are not to be treated as interpretations of law but as exercises of raw political power akin to legislative enactment.The Court in neither White nor Stop the Beach, of course, stopped to discuss the vision of judges as political actors inherent in their opinions. This paper does so. After first canvassing the specifics of both the White and Stop the Beach opinions, it analyzes what both cases say about the nature of judging and judicial institutions.
William P Marshall
144045117
Umpires as Legal Realists
Abstract During his confirmation hearings, then judge John Roberts analogized the role of a judge to the role of a baseball umpire. Roberts argued that umpires do not make the rules; they simply apply them. Legal scholars have criticized Roberts from a legal realist perspective because the analogy misconstrues the nature of judging as formalistic. I believe Roberts also misconstrued the nature of umpiring as formalistic. Like judges, umpires must rely on their experience, rather than logic, because the rules of baseball are sometimes incomplete, indeterminate, and contradictory. On occasion, umpires even ignore the rulebook (justifiably) The judges as umpires analogy thus illustrates the differences between legal formalism and legal realism in a way that students can more easily understand.
PS: Political Science &amp; Politics
William D Blake
228081906
A Common Law of Choice of Law
For more than a generation, choice of law has been the victim of a historical contingency. The "Conflicts Revolution" of the mid twentieth century and its legal realist leaders bundled together three concepts that, although all typifying the traditional approach, are not inherently connected: the "scientific formalism" of Bealean territorialism; attention to "system values" like uniformity and predictability; and judicial activism. The revolutionaries tied an anchor to formalism, sinking the regard for system values and judge led decision making in the process. This Essay argues that the rejection of system values and judicial lawmaking in the choice of law context was a mistake and it offers a means of reintegrating them into post revolution choice of law thought. Waving the flag of "legislative supremacy," modern choice of law theory has asserted that standard techniques of "statutory interpretation" ought to be determinative of how courts resolve choice of law problems. However, the modernists have failed to grapple with what "interpretation" means in a context that is almost never contemplated by legislatures. In recent years, those studying statutory interpretation have become increasingly sophisticated in their understanding of the ways in which courts use expansive sets of resources to counter difficult cases, leading to recognition of the "common law" of interpretation. But, so far, choice of law theorists have been left behind continuing to adhere to a primitive conception of statutory interpretation that shuns the role of the judge and the importance of broader goals, including the facilitation of system values. The Restatement (Third) of Conflict of Laws, currently being circulated in draft form, continues that error, wholeheartedly endorsing an outdated and unworkable mode of interest analysis. This Essay offers a means of modernizing the modernists and rescuing the Restatement (Third) in the process. The key insight is to recognize that judicial creativity and attention to the facilitation of a workable system of choice of law is fully consistent with realism. Moreover, the principle of legislative supremacy is better protected by a methodology that does not mask metaphysical invention behind empty phrases like "interests," but instead recognizes explicitly the important yet limited role of the judiciary. In line with these recommendations, this Essay advocates for the embrace of a "common law of choice of law" methodology, an approach that recognizes judicial, common law rule making and that does not rely on sharp, fictive lines drawn between "interpreting" the law and developing system oriented rules.
Lea Brilmayer Daniel Listwa
218573517
Judges, Critics, and the Realist Tradition
In reviewing contemporary criticism of the constitutional decisions of the Supreme Court during the tenure of Chief Justice Earl Warren, Judge J. Skelly Wright1 characterized as the "scholarly tradition" a way of thinking about constitutional law that he found exemplified by the early Oliver Wendell Holmes lectures, the Harvard Law Review's annual Supreme Court forewords, and particularly the recent writings of Professor Alexander Bickel and Professor Philip B. Kurland.2 The judge's critique of the critics raises the question whether the criteria of this "scholarly tradition" are the proper measure either of constitutional law or of the performance of the Supreme Court. Characteristically, questions of constitutional law and questions of the role of the Supreme Court are generally treated as the same thing. This faithfully reflects the tradition of two generations of legal realism the common core of tradition shared by most scholarship and most appellate judging today. The identity between the law in operation and the role of courts is a premise first year students absorb in such time hallowed epigrams as Holmes's definition of law as a prophecy of what a court will do in fact,3 and Hughes's "the Constitution is what the judges say it is." 4 It is "the realist school of jurisprudence to which both sides of the alleged controversy over the Warren Court pretend to adhere" wrote Kurland,3 and Bickel devoted a brilliant opening chapter of The Supreme Court and the Idea of Progress to sketching the intellectual and political ascendancy of the "Progressive Realists" in constitutional law.0 But there is more to the scholarly tradition of legal realism than a facile derivation of law from the judicial function. Never a closely
Intellect and Craft
Oliver Wendell Holmes
156368860
Study on Cardozo's theory of judge law making
The judge "discovery" the law or "create" the law.It is always a controversial issue.Cardozo is a moderate realist jurist.He admitted the important role of the legal certainty,but he insisted the law must be constantly evolving.Cardozo argued that judge making law is necessary,but it is more important to limit it.
Xu Li