VOLUME 163, ISSUE 7 July 2015


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.

The claim in vogue is that Legal Realism stands for “the insignificance of doctrine” and its conceptualization as a “mere appearance[].” In particular, commentators associate Realism with a “nominalist impulse” that minimizes the significance of doctrinal categories. Against this conventional wisdom stands the resilience of doctrinal analysis in general and, in particular, the continued role of doctrinal categories in legal practice and discourse, which is puzzling given the substantial impact of Realism on legal education. This puzzle is the focus of our Symposium.

Realists argue that the availability of multiple potentially applicable doctrinal sources renders pure Doctrinalism impossible. Unlike many of its caricatures, true Legal Realism does not challenge the perceived stability of the doctrine or its categories at a given time and place. This stability, which rests on the convergence of lawyers' background understandings at a given time and place, is valuable for realists; it is crucial for complying with the rule of law by providing effective guidance to its addressees and constraining officials' ability to exercise unconstrained power.

This is why Realists find the law's use of categories, concepts, and rules not only unavoidable but also desirable, and, thus, why they reject nominalism. For Realists, doctrine is and should be part of the law. But because doctrine qua doctrine is indeterminate, Legal Realists insist that some legal actors—notably, legislators and appellate court judges—should occasionally use social developments and new cases as triggers for rethinking the doctrine's conventional understanding. That is, they should be used as opportunities to revisit a doctrine's normative viability and reexamine its categories' adequacy. This task of critical reflection is even more important for legal scholarship, a point I will address briefly in my concluding remarks.

Given this understanding of the law, it should not be surprising that Realists are not puzzled by the continued significance of doctrinal categories in legal discourse. Legal Realism definitively rejects the orthodox idea that doctrinal categories refine some eternal descriptive truths that transcend context and that doctrinal taxonomy aspires to produce a map of mutually exclusive categories. Rather, Realists insist that the main roles of doctrinal categories are to consolidate people's expectations and to express law's ideals with respect to distinct types of human interaction. Therefore, Realists reconstruct doctrinal taxonomy so as to incorporate their insights on the inherent dynamism of law and the important function of contextual normative analysis in the evolution of doctrinal categories. Recasting doctrinal categorization in these terms recognizes the dynamic dimension of the taxonomic enterprise. It also implies that doctrinal taxonomy should be sensitive to context and emphasizes the importance of relatively narrow doctrinal categories. Finally, a realist doctrinal taxonomy recognizes and accommodates substantial, although never overwhelming, overlaps among the various categories.

As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth century. At a purely conceptual level, some trace the term back to Aristotle's notion of epieikeia, or the process of infusing the law with sufficient flexibility to avoid injustice. Lastly, at a largely practical level, a few treat equity as synonymous with a set of remedies that courts can authorize, all of which are characterized by being “extraordinary” and “discretionary” in form and substance.

While equity is often understood as either a repository of substantive rules and doctrines, or, more generally, as a parallel court system that developed in seventeenth and eighteenth century England with its own set of procedural rules and uniquely discretionary remedies, this understanding is incomplete in one important respect. Equity also represents a distinctive approach to legal reasoning within a primarily statute‐centric area of law, involving an increased role for courts in the lawmaking process and a ready recourse to a set of ethical principles that are presumed to be normatively superior to the strict letter of the law. In the traditional common law this use of equity came to be known as the process of “equitable interpretation” or as determining the “equity of the statute.” Used in this conception, it authorized courts to extend or restrict the otherwise clear words of a statute to give effect to the statute's “ratio or purpose.”

In this Article, we argue that equity, understood in this sense, is deeply influential in the construction and operationalization of copyright doctrine. While copyright law is obviously statutory in origin, the influence of equity on its working is best seen in relation to the role that the federal courts—primarily the U.S. Supreme Court—have had on its shape and direction. In a variety of doctrinal areas, the Supreme Court's copyright jurisprudence reveals a distinct pattern of curbing behavior that, while in strict compliance with the letter of the law, is inconsistent with the values and purposes of the copyright system. The Supreme Court's efforts to align the text of the statute's directives with its perceived goals thus partakes of what the common law characterized as the process of giving effect to the equity of the statute. While premised on the notion of gap filling, the process was routinely directed at curtailing opportunistic behavior on the part of litigants who sought to take advantage of the statute's literal terms, while violating the unstated normative goals of the legislation. A careful examination of Supreme Court decisions on core copyright issues over the last few decades reveals the profound role that the equity of the statute has had on the content of copyright doctrine. In addition, it sheds light on the real and all too often overlooked role that courts play in the creation and construction of both copyright doctrine and the copyright system's underlying goals and values.

Conflict of laws scholarship in the United States in the middle half of the twentieth century produced what is commonly referred to as a “revolution.” Quite apart from its revolutionary content, this scholarship is extraordinary in three principal ways. First, it is extraordinary for its volume, its prominence and the eminence of many of those producing it. Following Joseph Story's pioneering work in the nineteenth century and well into the middle of the twentieth century, some of the best and brightest legal minds in some of the leading American law schools were devoting their not inconsiderable energies to this field, publishing in the best of the American law journals and spawning a vast literature—Joseph Beale and Erwin Griswold, Wesley Hohfeld, Ernest Lorenzen and Walter Wheeler Cook, Hessel Yntema, David Cavers, Albert Ehrenzweig and Brainerd Currie. Second, this scholarship is extraordinary for its fiercely intellectual and visceral nature. The literature reveals not only unusual analytical and comparative thoroughness but also unusual competitive relentlessness and interpersonal rhetorical argumentativeness. The third extraordinary feature—with which this Symposium is concerned—is the striking impact this scholarship had on judicial practice in the United States and the equally striking absence of almost any impact on scholarship or judicial practice outside the United States.

The claim that legal disputes have no determinate answer is an old one. The worry is one that assails every first‐year law student at some point. Having learned to argue both sides of every case, the feeling seems inevitable.

But to assess the “skeptical thesis,” which is what I will hereafter call this claim, in its strongest version, we will do well to look at a particularly vigorous presentation of it, which, in the case of criminal law, is to be found in Mark Kelman's justly famous Interpretive Constructs in the Criminal Law. What caught people's imagination about Kelman's article were, I think, two features: on the one hand, there was the sheer virtuosity with which Kelman presented each side of a series of cases making up the standard criminal law curriculum; but, secondly, and probably more importantly, there were the patterns he was able to discern in the arguments being made—the recurrent themes, tropes, moves, and perspectives being employed by each side. These two aspects of the article imbued Kelman's presentation of the skeptical thesis with particular zest. The skillful presentation of each side of the argument in cases that he did not especially select for the purpose, along with the suggestion that such arguments could be cooked up, almost as by recipe, using the themes, tropes, moves, and perspectives he identified, made the conclusion that legal doctrine really does not settle any dispute, or at least any dispute of consequence, almost irresistible. Something else, most likely the whims of the judges, must be the real determinants of the outcome.

Is Kelman arguing that only hard cases are indeterminate? No, he suggests that even easy cases, looked at closely, turn out to be indeterminate. What does he make of the solutions courts purport to offer in these cases? They are make‐believe. The cases could easily have come out differently, but the courts deceive themselves about that by semiconsciously or even unconsciously deleting the possible conceptual moves that would have allowed them to reach an alternative outcome. “One real conclusion,” from his article, he suggests, “one possible bottom line, is that I've constructed a very elaborate, schematized, and conceptual piece of winking dismissal: ‘Here's what they say, this is how far they have gotten. You know what? There's not much to it.’”

In what follows, I am going to consider the skeptical thesis from a variety of perspectives, some of which undercut it, others of which do the reverse.

The American Legal Realists did not reject doctrine, because they did not reject the idea that judges decide cases in accordance with normative standards of some kind: “doctrine,” after all, is just a normative standard about what should be done, and not necessarily one formulated and made explicit by a statute, a court, or a treatise. A judge who decides cases based on the norm “this breach of contract is efficient” still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non‐legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely, and it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this Symposium show, precisely because the realist law reform movement was successful in so many arenas.

All of these points were driven home to me almost twenty years ago when I was teaching at the University of Texas and had the opportunity to talk at some length with my colleague, the late great Professor Charles Alan Wright, then the President of the American Law Institute (ALI) and the senior author of perhaps the most important and influential treatise in American law of the past half‐century, Federal Practice and Procedure. Wright seemed a quintessential “doctrinalist,” perhaps the greatest and most influential of his generation, and yet he was also an unabashed Legal Realist. Understanding that apparently puzzling combination of attributes is essential to understanding the real essence of American Legal Realism.

The father of the American law school, Christopher Columbus Langdell, famously conceptualized the law as akin to science. On this account, legal doctrine was a series of scientific truths that judges systematically revealed over time. Decades later, the Legal Realists took issue with Langdell's rigid conception of legal development. In their view, law was not simply a set of formal doctrines that was applied neutrally. Instead, the Legal Realists argued that real world concerns—including politics—informed the application and evolution of legal doctrine. Judges thus were not scientists, faithfully applying doctrine in an evenhanded way, but rather keen political actors who could—and did—manipulate doctrine to achieve desired outcomes.

Today, almost 150 years after Langdell elevated legal doctrine to the status of scientific truth, this Symposium questions whether doctrine survives in the present day, or if it has been completely subordinated to the exigencies of contemporary situations, as the Legal Realists claimed. I approach these questions from the domain of family law, where the circumstances that animate case law are often deeply idiosyncratic and particularized. As Leo Tolstoy observed (in a nonlegal context), “Happy families are all alike; every unhappy family is unhappy in its own way.”

Despite the idiosyncratic nature of families and family life, most family law scholars and practitioners would agree that there is a robust body of family law doctrine, as evidenced by the work of federal and state courts and the many efforts to codify various family law principles into statutes. While this growing body of state and federal law plays an important role in the adjudication and resolution of familial disputes, it is not the only source of family law doctrine.

In this Article, I offer a more nuanced view of the field and the role of doctrine in it. Although there is a robust body of family law doctrine, including judge‐made case law, various state family law codes, federal statutory law, and federal constitutional law, as well as the model codes that often inspire law reform, the legal rules that these forms enshrine often assume and privilege a particular family model—marriage and the biological family produced in marriage. When families depart from the marital and biological model on which these doctrines rest, the assurances and predictability of legal doctrine evaporate. In these circumstances, the question of doctrine—of legal truths—becomes deeply contested as courts confront scenarios that require them to grapple with the fraught question of how to apply doctrine in light of real world concerns and the particular circumstances of litigants' lives.

In this contribution to a symposium on “Legal Realism and Legal Doctrine,” I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be resolved in more or less the same way in each system. This is unsurprising in a field such as corporate law, where market and institutional pressures demand practical solutions to practical problems.

On the other hand, the differences in style are inescapable. While Delaware corporate law judges openly identify gaps and resolve them by reference to policy, U.K. judges employ a traditional historical/doctrinal approach, working through precedent and, in doing so, developing principles to resolve the case at bar. These differences in style, it seems to me, are a legacy of the impact of American Legal Realism on legal education in the United States, in contrast to the more traditional approach dominant in the United Kingdom. Explicit policy analysis is far more acceptable and natural in the Delaware approach than in the United Kingdom, and this difference in legal culture has effects on how lawyers present cases.

According to conventional wisdom, property has disintegrated. Property law has undergone many changes since the heyday of Legal Realism, and many of these changes were both inspired by Realism and went under the banner of the Realists' “bundle‐of‐rights” conception of property. However, many of the features of property law most denigrated by the Legal Realists and their successors have proved surprisingly resilient. These “doctrinal” features include the notion of property as a thing, the importance of possessory rights, and the greater degree of formalism in property than in contract law. In this Article, I argue that there is a common cause to the Realists' criticism of these features and their endurance in the face of that criticism: all of these features of property are manifestations of property law's basic architecture as a system. Because of the inherent complexity of relations—especially those that are less personalized—in private law, a system for providing a first cut at managing these relations presents problems of information costs that are unique to property. These costs, usually left out of realist analysis, are hard to ignore entirely and push property law to treat private interactions in a more modular fashion than the realist bundle‐of‐rights picture would lead one to expect. Moreover, the underappreciated flexibility and robustness of a modular architecture allows property law to absorb—at some cost—a great deal of change without alteration of its basic nature. I apply this analysis to Realist and post‐Realist approaches to asset definition, trespass and nuisance, and the standardization of property forms. The greatest engine for change from Legal Realism in certain areas of property may be simple ignorance of the complexities of earlier law.

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case‐specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties' entitlement–accountability relationship. The cost‐minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal‐best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board.

This Article connects these principles to the irreducibly second‐personal structure of legal doctrine (that tracks Stephen Darwall's celebrated account of morally justified claims). Under this structure, the plaintiff's (or the prosecutor's) authority to extract compensation from (or impose punishment on) the defendant critically depends on the trustworthiness of the individual infringement allegations that make the defendant accountable to the plaintiff (or the prosecutor). Evidentiary rules fit into this second‐personal framework only when they promote case specificity, cost minimization, or equal best. Reform proposals that favor different rules are fatally disconnected from that framework and are therefore ill‐conceived.

Based on this observation, I criticize three powerful accounts of evidence law that rely, respectively, on economics, probability theory, and morality. These accounts include Louis Kaplow's theory of the burden of proof, Daniel Kahneman and Amos Tversky's claim that factfinders' deviations from mathematical probability are irrational, and Ronald Dworkin's distinction between accidentally and deliberately imposed risks of error. These accounts break away from our second‐personal system of entitlements and liabilities; by doing so, they create a methodologically impermissible disconnect between rules of evidence and substantive laws.

This Article starts with the proposition that most American contracting is consumer contracting, posits that consumer contracting has particular and even peculiar doctrinal features, and concludes that these features dominate the lay understanding of contract law. Contracts of adhesion constitute the bulk of consumer experience with contract law. It is not hard to see that someone discerning the nature of contract law from a sample composed almost entirely of boilerplate terms and conditions would come quickly to the conclusion that contract law is highly formal.

Within the realm of potentially enforceable deals (i.e., those that are supported by consideration and not illegal or unconscionable), modern contract doctrine upholds agreements when the parties have objectively manifested assent. This is the contract law of the first‐year Contracts course, and it is, more or less, why contracts existed in the cases Hadley v. Baxendale, Hawkins v. McGee, and Embry v. Hargadine, McKittrick Dry Goods Co. These three canonical cases each involve oral manifestations of assent: respectively, the contracts are based on the carrier's promise that the crankshaft would be delivered by noon the next day; the doctor's promise of a one‐hundred percent good hand; and the employer's response to his anxious employee, “You're alright. Go get your men out.” For everyone who knows the doctrine of assent, these are relatively easy cases for finding contracts, because the evidence suggests that the parties, in fact, communicated to each other their agreement. However, these cases might startle a large percentage of the nonattorney population, for the simple reason that they are oral and not written contracts.

What accounts for this misperception of contract law? Americans are not contract naïfs. On the contrary, most people enter into numerous legally binding agreements every year, if not every month or week. These are the agreements we make with Amazon, PayPal, Comcast, Apple, AT&T, and Visa, to name a few—in other words, these are the contracts we enter into regularly as consumers. Consumer contracts share key features: they are formal, assent is memorialized (either by signature or by clicking “I agree”), parties neither negotiate nor read their terms, and they are almost universally enforceable and, when litigated, enforced. This is the contract law that individuals encounter every day.

As such, perhaps we should not be surprised that this is what most people think that contract law is. Emerging evidence indicates that most people think contracting means signing the paperwork and that contract law is about the form of consent rather than the content to which parties are consenting. This “intuitive formalism” deserves our empirical and normative attention because it has real implications for how consumers behave in their deals and how they interact with their legal system.

The law's use of the terms “reasonable” and “unreasonable” are legion and notorious. Indeed, the law's seemingly carefree attitude in throwing around these terms has often served Legal Realists and their descendants well in their effort to depict legal language as simply a shell through which actors exercise the widest sort of discretion to select their favored outcomes or policies. Conversely, ambitious agendas from philosophers and economists have often found that “reasonableness” provides a readily available anchor in the positive law for their normative theories. Work by moral and political philosophers devoted to analyzing “the reasonable” and work by economists, decision theorists, and game theorists on rationality understandably turn the law's use of “reasonableness” into a magnet for legal theory. In these respects, “reasonableness” might be seen as the third “r” of legal theory. Like “rights” and “responsibility,” “reasonableness” is beloved by legal theorists and equally beloved by the skeptics who spend their time skewering those theorists.

However tempting it is to join one side or the other in these jurisprudential wars, it is useful to step back and do some legwork on the place of the reasonable within the law, and more specifically, on the variety of places that “reasonable” and its cognates are found in the law. Hohfeld and many since him have found what I might call “varietal analysis” useful in exploring the concept of rights, as did Hart within the concept of responsibility. If exploration of the varieties of reasonableness in the law were to provide even a fraction of the illumination generated by their work on the other two “r”s, the enterprise will have been worthwhile.

There is, of course, an irony in my suggested sequence of research. The word “reasonable” is a paradigmatic example of a standard in the law, and its meaning is, if nothing else, vague. And—as intimated above—that is why it is so tempting to reach to legal, philosophical, and economic theories to flesh out some content for “the reasonable” when content is needed. It thus seems odd—backwards, even—to turn to legal doctrine to try to illuminate reasonableness.

My reasons for looking at doctrine relate to a suspicion that legal scholars with a theoretical proclivity have too quickly conflated three quite different attributes of the language of reasonableness in the law: the attribute of vagueness, the attribute of meaninglessness, and the attribute of ambiguity. For a term or a phrase to fall short of clarity because of vagueness is quite different from having no meaning at all, and both are different from having multiple meanings—being ambiguous. A failure to distinguish among these features of meaning can distort our view of the relevant domain of law. Indeed, the failure to recognize the multiple ambiguity of “reasonableness” can lead to a distorted view of its vagueness and unclarity in the law.

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