As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is “more malleable, less determinate, and less causal of judicial outcomes” than is traditionally presumed. Judges in this view are taken to decide cases based on what they consider “fair” under the circumstances, “rather than on the basis of the applicable rules of law.” Judicial reasoning, the Realists argued, was rarely ever the “constrained product of legal doctrine and legal materials alone.” A hallmark of Legal Realism was therefore pervasive “skepticism” about the constraining effect of legal doctrine on judicial opinions and scholarly critiques of judge‐made law. The constraint of legal doctrine was thus believed to be mythical.
In a variety of substantive areas, judicial opinions continue to speak the language of legal doctrine, and legal doctrine remains the “currency” of legal analysis. Judges—at least on the face of things—appear as constrained or unconstrained by legal doctrine today as they appeared to be prior to the influence of Legal Realism. Consider a pair of copyright cases as an example. In 1908, the Supreme Court decided White‐Smith Music Publishing Co. v. Apollo Co., and held that a manufacturer of perforated piano rolls did not commit copyright infringement, since the rolls were not “copies” for the purposes of copyright law. In arriving at its conclusion, the Court looked to prior nonbinding case law, legislative intent, its own construction of the statute, and the common understanding of the term “copy.” The only express suggestion of constraint in the Court’s opinion is its observation—in dicta—that if the prior case law had been of a “binding character” it would have “preclud[ed] further consideration of the question.” Now, contrast this with a case decided by the Court in 2014, American Broadcasting Co. v. Aereo, Inc. The question before the Court was whether a service that re‐transmitted free broadcasting content to subscribers over the Internet had committed copyright infringement by engaging in a “public performance” for the purposes of copyright law. In answering the question in the affirmative, the Court justified its conclusion entirely by reference to the legislative history of the statute’s definitions of “public” and “perform” and its own reconstruction of Congress’s regulatory intent underlying the statute.
The similarity in style and reasoning in the two opinions is stark and real. Both speak the language of formal legal doctrine, both make reference to precedent (when available), both defer to Congressional “intent” and purpose, and both rely as best as possible on the text of the statute. One was crafted in a pre‐Realist era and the other well after the dominance of Legal Realism. Their puzzling parallelism highlights the central questions that this Symposium set out to answer: Does legal doctrine in fact continue to “constrain” judicial reasoning, even after almost every participant in the legal system today has come into contact with the central premise of Legal Realism (i.e., the supposed myth of doctrinal constraint)? Are there ways of reconciling courts’ post‐Realist use of legal doctrine with the core insights of Legal Realism? How uniform—across the law—is this apparent continuity in the use of legal doctrine?
Instead of seeking to answer these questions in the abstract as philosophical inquiries, the Symposium instead chose to have leading legal scholars, each from a different substantive area of law, reflect on the role of legal doctrine in their respective areas of expertise. Our hope was that having scholars reflect on this issue by reference to their own fields of expertise would address the question of “doctrinal constraint” in the American legal system organically and trans‐substantively. The areas chosen were drawn from both federal and state law, statutory and common law, and represented areas traditionally characterized as public law and private law. Some scholars chose to reflect on the question by looking at their field as a whole, while others reflected on the issue through specific cases, rules, or problems unique to their particular field.