Legal realism

Copyright © 2003 by Donald C. Hubin

Legal Realism

Don Hubin

Background

• Legal Realism was a distinctly American approach to philosophy of law.

• It was an attempt to take a hard-headed, cold-eyed look at how the legal system actually operates.

• It was a reaction to a formalistic account of law and “mechanical jurisprudence.”

Mechanical Jurisprudence

• Viewed law as a complex system of set and precise rules created by the legislature.

• Viewed the role of judges to be simply determining which rules applied to the facts of the case.

• Legal Realists saw this as a distorted picture of law and of the role of courts in a legal system.

Inspiration for Legal Realism

Bishop Benjamin Hoadly1676-1761

• “Nay, whoever hath an absolute authority to interpret any written or spoken laws it is he who is the lawgiver to all intents and purposes and not the person who first wrote or spake them.”

Early Legal Realists

• “"The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.“

Oliver Wendell Holmes, Jr.

1841 -1935

The Nature of Legal Realism

• Law is not a species of rules. – Some deny the reality of legal rules– All deny the importance of rules in

understanding the law as it is actually applied.

– Legal Realism has sometimes been called “Rule Skepticism”

• Law is what courts do.

Two Versions of Legal Realism

• Extreme (Unqualified) Legal Realism– Denies the existence of any legal rules,

including:• Rules regulating behavior• Rules empowering people or defining legal offices

• Moderate (Qualified) Legal Realism– Denies the existence of legal rules regulating

behavior but not the existence of all legal rules empowering people or defining legal offices.

Extreme Legal Realism

• Criticism:– This form if legal realism is incoherent

because an adequate analysis of a court requires reference to the legal rules that create the court and define its powers and limitations.

• Trying to define ‘court’ in a de facto manner would encounter all the problems Austin had in his definition of ‘sovereign’.

Moderate Legal Realism

• Motivation– An Ohio Case to Illustrate

• Criticisms

Statutes and Court Behavior:A Case Study in the Motivation

for Legal Realism• Until recently (2001), Ohio law defined ‘gross income’ for

purposes of determining child support as follows:– “Gross income” means, except as excluded in this

division, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes, but is not limited to, income from salaries, wages...spousal support actually received from a person not a party to the support proceeding for which actual gross income is being determined, and all other sources of income; … self-generated income; and potential cash flow from any source. (R.C. 3113.215(A)(2), emphases added to original.)

The Bailey Decision

• [Bailey v. Bailey (September 22, 1992), Franklin App. No. 92AP-446, unreported, 1992 Ohio App. LEXIS 4900]

• Question: “Is spousal support paid from a person who is a party to this child support action income to the recipient?”

The Bailey Decision

• Statute clearly defines ‘gross income’ so as to include the amount of spousal support received from a party to the child support action.

• But the court held otherwise.

The Bailey Decision

• But, the Bailey Court determined that spousal support paid from one party to a child support action to another is not income to the recipient for purposes of calculating child support. “R.C. 3113.215(A)(2) defines gross income to include spousal support

actually received from a person not a party to the support proceeding for which actual gross income is being determined. Therefore spousal support is not income to [when received from a person who is a party to the child support action].”

• The Bailey court went on to “reason” that since the spousal support was not income to the recipient in these cases, it had to be counted in the income of the parent who paid the spousal support despite the fact that the statute later specifically exempts any court ordered payments from the definition of ‘gross income’.

The Fallacy of the Bailey Decision

• The fact that the statute specifically includes in gross income spousal support paid from a former spouse who is not a party to the child support action does not entail that gross income does not include spousal support paid from a former spouse who is a party to the action—especially when the statute specifically says that this definition “includes but is not limited to” the things items specified.

The Absurdity of the Bailey Decision

• The Bailey decision ignored the realities of income and based child support levels on a fiction. – Example: Pat and Terry

The Bailey Decision and Legal Realism

• What was the law in Ohio between 1992 and 2001 (when Bailey was overturned by legislative action)?– The Classical Legal Positivist Answer– The Legal Realist’s Answer

Classical Legal Positivist’s Answer

• The prevailing legal theory early in the 20th Century would hold that the law in Ohio at that time required that spousal support actually received from a party to the child support action be counted as part of the recipient’s gross income. This is the plain meaning of the language in the statute.

Legal Realist’s Answer

• “Get real man! The law isn’t what’s written in a dusty old law book. The law is that the courts are doing. For this period, the law in Ohio was that spousal support paid to a party in a child support action does not count as income to recipient and does count as income to the payer. Saying otherwise is not being realistic.” – If you were an attorney for either of the parties in this

situation, what would—and what should—you advise your client is the “law” in Ohio?

– If you are a party in such a case, what would you want to know about the “law” in Ohio?

Moderate Legal Realism

• Criticisms– Too Broad: There are predictions of what

the courts will do and (official) actions of courts that are not law.

– Gives a Distorted Picture of Judicial Reasoning

– Gives a Distorted Picture of the Judge’s Role in the Legal System

Too Broad

• This account can’t distinguish between legal decisions and procedural rulings—even mundane procedural rulings like the decision to recess.– Note that procedural rulings are decisions

made in the judge’s official capacity.

Distortion of Judicial Reasoning

• Judicial deliberations (at least at the highest level) become deliberations about what the judge will decide.– “What is legally correct?” means “What will

I decide?”

Distortion of Judicial Reasoning:Statutes as “Sources of Law”

• Statutes are considered mere “sources of law” because they, in fact, influence judges’ decisions. – If the judge’s dreams, love life or

hemorrhoids influence her/his decision, then these things have the same legal status as statutes.

Distortion of Judicial Reasoning

• This view does not allow for the concept of a decision being made on legally irrelevant grounds.– Example: Ohio judge who was deciding

cases by flipping a coin.

Distortion of Judge’s Role

• Legal Realism fails to distinguish between finality and infallibility.– Example: football v. “scorer’s discretion”