COLUMBIA LAW SCHOOL FALL 2012 TUESDAY FACULTY WORKSHOP SERIES Tuesday, November 20, 2012 Fred Schauer Presents “LEGAL REALISM UNTAME D” Case Lounge, Jerome Greene Hall Catered Lunch to begin at 12:00 p.m. Presentation to begin at 12:15 p.m. Discussion to follow until 1:10 p.m.; informal conversation until 1:30 p.m. Electronic copies of the papers are available online at http://www.law.columbia.edu/faculty/fac_resources/faculty_lunch/fall12 Please contact Char Smullyan for special dietary requests: ext.4-3259, [email protected] For extra copies or other questions, please contact Rachel Jones: 4-7594, [email protected] Date Presenter Paper September 4 Michael Gerrard Expedited Approval of Energy Projects: Assessing the Forms of Procedural Relief 11 Carol Sanger Father and Fetuses: What Would Men Do? 18 Charles Fried The Ambitions of Contract as Promise Thirty Years On 25 Franz Mayer The Law and the Euro Crisis October 2 Legal Theory Workshop TBA 9 Curtis Milhaupt “We are Happy": A Glimpse of North Korea under Kim III 16 Daniel Bethlehem Principles Relevant to the Scope of a State's Right of Self - Defense Against an Imminent or Actual Armed Attack by Nonstate Actors 23 Sudhir Krishnaswamy Implementing the Constitution: Directive Principles as Underenforced Norms 30 Hanoch Dagan Private Law Pluralism and the Rule of Law November 6 Academic/ Curriculum N/A Lunch 13 Scott Hemphill and Tim Parallel Exclusion Wu (Thursday Workshop) 20 Fred Schauer LEGAL REALISM UNTAMED 27 Legal Theory Workshop TBA December 4 Panel Celebrating Robert The Three and a Half Minute Transaction: Boilerplate and Scott & Mitu Gulati's new the Limits of Contract Design book LEGAL REALISM UNTAMED Frederick Schauer 1 I. Introduction Law is not only about hard cases. There are easy ones as well, 2 and understanding how law functions requires considering not only litigated and then appealed disputes, but also the routine application of legal rules and doctrine. Upon leaving the courthouse and its domain of difficult controversies, we observe the everyday determinacy of law -- the production of clear guidance and uncontested outcomes by straightforward legal language, black-letter law, and the conventional devices of legal reasoning. Law’s routine determinacy is often taken to undermine much of Legal Realism’s skepticism about positive law’s causal effect on judicial decisions.3 If Realism’s skepticism about the 1 David and Mary Harrison Distinguished Professor of Law, University of Virginia; Visiting Professor of Law (2012-2013), Columbia Law School. Earlier versions of this Article have been presented at the University of Copenhagen conference on New Frontiers of Legal Realism, at the University of Paris X-Nanterre, and at the Yale Law School. Comments and information from John Harrison, Rick Hills, Brian Leiter, Paul Mahoney, Bobbie Spellman, Matthew Stephenson, Adrian Vermeule, and George Yin have been of great assistance. 2 Frederick Schauer, Easy Cases , 58 S. Cal. L. Rev. 399 (1985). 3 How to understand Legal Realism and its legacy is contested terrain. Some see it as focused not on legal indeterminacy, but on the contingency and non-neutrality of law and its baselines. E.g., Barbara H. Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Economics Movement (1998); Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy 169-212 (1992); Joseph William Singer, Legal Realism Now , 76 Cal. L. Rev. 467, 475-95 (1988) (reviewing Laura Kalman, Legal Realism at Yale: 1927- 1 constraints of positive law applies only to the sliver of legal events that are litigated cases, 4 it is said, then although Realism may question whether most appellate cases have a legally right answer, it does not challenge law’s pervasive determinacy. 5 This marginalization of Legal Realism turns out, however, to ignore the Realist distinction between “paper rules,” on the one hand, and “real” or “working” rules on the other. 6 Llewellyn 1960 (1986)). Others understand Realism as the ancestor of modern empirical legal studies. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance , 92 Nw. U. L. Rev. 251 (1997); Thomas J. Miles & Cass R. Sunstein, The New Legal Realism , 75 U. Chi. L. Rev. 831 (2008); Symposium, Empirical Legal Realism: A New Social Scientific Assessment of Law and Human Behavior , 97 Nw. U. L. Rev. 1075 (2003). And still others find in Realism the foundations for much of the law and society research agenda. E.g. , Arthur F. McEvoy, A New Realism for Legal Studies , 2005 Wis. L. Rev. 433; Sally Engle Merry, New Legal Realism and the Ethnography of Transnational Law , 31 Law & Soc. Inquiry 975 (2006); Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? , 25 Cornell L. Rev. 61 (2009). Such non- standard understandings, however, are not my concern here. Rather, this article is located within the core Realist claim that legal doctrine, whether because of the indeterminacy of individual rules or the availability of multiple ones, is more malleable, less determinate, and less causal of judicial outcomes than a traditional view of law’s constraints supposes. This conventional ( see Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 15-118 (2007); Edwin Patterson, Jurisprudence: Men and Ideas of the Law 537-56 (1953); Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin , 15 Phil. & Pub. Affairs 205 (1986); Hanoch Dagan, The Realist Conception of Law , 56 U. Tor. L.J. 607 (2007); G. Edward White, The Inevitability of Critical Legal Studies , 36 Stan. L. Rev. 649, 651 (1984)) conception of Realism’s core claims encompasses Thurman Arnold, Felix Cohen, Walter Wheeler Cook, Jerome Frank, Karl Llewellyn, Herman Oliphant, Hessel Yntema, and Underhill Moore, among others, as well as some of the scholarship of Duncan Kennedy ( see Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology of Judging , 36 J. Legal Ed. 518 (1986)) and Mark Tushnet ( see Mark Tushnet, The New Constitutional Order 120 (2003)(“For the realists, conclusions did not flow from principles: In a mature legal system whose doctrinal space was thickly populated, a judge given a principle articulated in some prior case could faithfully deploy that principle along with others equally available in the doctrinal universe to reach whatever result the judge thought socially desirable.”). 4 See text accompanying notes 21-24, infra. 5 See Part III, infra . 2 and others believed that statutory language and black-letter common law rules were often poor approximations of the actual rules motivating judicial decisions. 7 Judges do follow rules, they insisted, 8 but the rules they follow are often not the ones found in standard legal sources. The distinction between real and paper rules is well-known,9 but what remains unnoticed is that when paper rules do not describe the real rules judges use in making decisions, the divergence will influence the distribution between hard and easy cases. Even if the indeterminacy claims of Realism are limited to the domain of litigated cases, therefore, the 6 Karl N. Llewellyn, A Realistic Jurisprudence – The Next Step , 30 Colum. L. Rev. 431, 444-57 (1930). See also Karl N. Llewellyn, The Theory of Rules 63-76 (Frederick Schauer ed., University of Chicago Press, 2011) (1938) (noting the relative unimportance of the “propositional form” of legal rules); Karl N. Llewellyn, Some Realism about Realism , 44 Harv. L. Rev. 1222, 1222 (1931) (“some rules [are] mere paper”). And see John M. Breen, Statutory Interpretation and the Lessons of Llewellyn , 33 Loy. L.A. L. Rev. 263 (2000). 7 See William Twining, Karl Llewellyn and the Realist Movement 30 (1973) (quoting Arthur Corbin’s observation that actual legal rules differed from those “in print”). See also Nathan Isaac, Some Thoughts Suggested by the Restatements, Particularly of Contracts, Agency, and Trusts , 8 Am. L. Sch. Rev. 424, 428 (1936)(“dry rules”). And the contrast between paper and real rules was captured earlier in Roscoe Pound’s enduring distinction between law in the books and law in action. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910). 8 H.L.A. Hart accused the Realists of seeing rules as predictions and not internalized guides, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed., 1994), but the charge does not stick. See, e.g. , Llewellyn, The Theory of Rules, supra note 6, at 46 (noting the rule-based feelings of lawyers and judges), 51-62 (distinguishing commands from predictions); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 840 (1935) (claiming that judges apply the rules they think reasonable); Llewellyn, A Realistic Jurisprudence , supra note 6, at 444 (acknowledging that rules influence judicial behavior). See also Dagan, supra note 3, at 647-48 (observing that rule-oriented Realism is “not a contradiction in terms”); Alan Schwartz, Karl Llewellyn and the Origins of Contract Theory , in The Jurisprudential Foundations of Corporate and Commercial Law 12, 24, 40-41 (Jody S. Kraus & Steven D. Walt eds., 2000) (describing Llewellyn’s commitment to rule-based decisions). 9 See notes 6-7, supra . 3 distinction between paper and real rules determines that domain and thus pervades the entirety of law. The gap between paper and real rules, by producing consequences throughout law and not merely to a small subset of it, thus reveals the Realist challenge to be more foundational, less marginal, and – importantly -- less tamed. The question I address is as fundamental as it is simple: What makes hard cases hard, and easy ones easy? The answer is empirical, varying with time, place, and area of law.