Paul L. Caron

Monday, September 5, 2022

Introducing First-Year Law Students To 'Legal Realism'

Gregory S. Crespi (SMU; Google Scholar), What Do Good Lawyers Know that the Rest of Us Don't? Introducing First-Year Law Students to 'Legal Realism':, 100 Neb. L. Rev. Bull. (2022):

This short article presents the general outlines of a short lecture that I usually give to my first-year contract law students, in about their second or third week of classes, to get them started thinking about the process of judicial decision-making, and about the “legal realist” perspective regarding that process.

Let me end this brief discussion by calling your attention to a 2007 study of the adjudication process done by Cass Sunstein, one of the most respected and cited law professors in the country. This study focuses narrowly upon the specific role played by the political affiliation of federal judges, Republican or Democrat or independent, in shaping judicial decisions within the currently relatively homogeneous group of predominantly upper-middle class, predominantly white, predominantly male and predominantly heterosexual persons that are now serving as federal judges, as compared to the role played by the law in shaping those decisions.

From a legal realist perspective you would obviously expect that greater diversity of gender, race, sexual preference, economic background, etc., among judicial appointments would lead to much greater variation among their decisions. What is interesting about the Sunstein study, however, is that he found that even differences among judges only with regard to their Republican or Democratic political affiliation, among an otherwise demographically and economically and socially relatively homogenous group of people, has major importance for the results reached in many kinds of cases of great social significance, particularly those cases involving such hot-button social issues as, for example, disability rights, abortion rights, campaign finance regulation, gay rights, affirmative action, sexual discrimination, and environmental protection. 

Sunstein’s study suggests that the legal realists may have it right regarding the importance of judicial attitudes and predispositions, and their political orientation, relative to the lesser role played by the formal body of law in deciding these kinds of controversial cases. However, Sunstein also found that there are some other areas of law where both Democratic and Republican judges tend to reach the same results, despite their different ideological orientations. This suggests that the formal body of law does constrain judges to some extent, providing some support for a formalist explanation of judicial decisions, at least for those areas where the law is unusually clear and not so controversial. In my opinion, however, his study overall provides more support for the legal realist assessment of the ultimate sources of judicial decisions than it does for the formalist model of adjudication. But that is my opinion; you guys should all think about this a lot as you read many cases over the next few years, and draw your own conclusions.

Let me close by noting that Sunstein also makes the interesting point that three-judge panels of judges that all have the same political affiliation tend to take more extreme, polarized partisan positions in their rulings than any of those judges would take individually, apparently reinforcing in their deliberations each other’s more extreme tendencies. This finding of a group dynamic tending toward more extreme results among groups of persons who are generally in agreement initially has broad implications in many contexts, and here suggests that multi-judge judicial panels should perhaps be chosen so as to include at least one person from a different political party than the others in order to counter this group polarization tendency.

With that introduction, now it is time for you all to go read all of those hundreds of cases that you will be assigned by your professors over the next three years, and try to figure out for yourselves what those judges are all about!”

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