Legal Realism Notes for January 30

Main points

We talked about what legal realism is and the motivations for adopting it.

I had a glitch in my lecture notes, so I would like to amend them in a minor way here. I think there are three motivations for legal realism.

  1. Clarity: it has a simple alternative to natural law’s account of what law is. Its theory of knowledge is similarly straightforward. How do you come to know what the law is? In the same way that you come to make predictions about just about anything: by looking at the past and making inferences about the future.
  2. Relevance: it provides the answer to the question people who use the legal system ask. When they want to know what law is, what they want to know is how judges will rule.
  3. Realism: it describes how cases actually work. According to experienced judges like Holmes and Frank, the law is frequently indeterminate, so judges wind up deciding what the law is rather than simply applying it.

Law and morality

We discussed a fourth point as well, concerning the relationship between law and morality. I called this a separate motivation for legal realism. But I think it’s better understood in another way. In saying that law and morality are two separate things, I think Holmes is trying to dismiss an alternative to legal realism. He does so on the realistic grounds that this is the way the law actually works.

For example, he claims, those who care only about the law care only about penalties. Those who care both about the law and morality, potentially conflate the two, especially because the language of the law sounds similar to moral language. But, Holmes claims, the law does not use its apparently moral terms in the way that our moral rules do.

Examples of indeterminacy

In American constitutional law, there are two big areas in which the language of the Constitution is both wide open to interpretation and frequently abused by each side of the political spectrum. These are the equal protection clause of the Fourteenth Amendment and the takings clause of the Fifth Amendment.

Michael Kinsley did a better job of stating this than I ever will, so here’s his take, pardon the pun.

The “takings” clause of the Fifth Amendment is for conservatives what the equal protection clause of the 14th is for liberals. It wouldn’t be fair to say that conservatives cherish property the way liberals cherish equality. But it would be fair to say that the takings clause is the conservatives’ recipe for judicial activism — imposing their agenda through the courts rather than bothering with democracy — just as they say liberals have misused the equal protection clause. …

The equal protection clause was a handy tool because just about anything the government does or doesn’t do can be framed as treating people unequally. You get pulled over for speeding, and he doesn’t; she gets a job, and you don’t; the president calls on him at a news conference and not you, and so on. When does unequal treatment become unconstitutional? In the heyday of the Warren Court, almost anything on your wish list was at least worth a try.

Almost any government activity can also be seen as taking property “without just compensation.” The basic model of an unconstitutional “taking” would be if the government threw you out of your house. But Richard Epstein, a University of Chicago Law School professor and the godfather of the “takings” movement, says: Okay, what if you owned two houses and the government took one of them. Still a taking. So suppose that the government took a half-interest in both houses? What’s the difference? Or what if the government enacts zoning or environmental regulations that reduce the value of your house by half? Or gives someone a government benefit that you don’t get, but, as a taxpayer, will have to pay for? In law school, this is called “salami slicing” and it has been known to drive people mad, including, in the opinion of some, Professor Epstein. But his logic is compelling. Once you start down the takings road, it’s hard to stop before Epsteinville. Possibly for that reason, the Supreme Court has clung pretty tightly to literalism and declined repeated invitations to use the takings clause like a scythe to cut the government down to size.

In other words, the left tries to use the vagueness of the equal protection clause to try to push its causes. The (libertarian) right tries to use the vagueness of the takings clause to do the same. And the letter of the law leaves the door open for that.

Here’s another example. In this case, the people who originally supported the law in question insist that not even they knew what it meant before a judge ruled on it.

Public universities, state agencies and local governments in Michigan cannot offer health insurance to the partners of gay and lesbian employees, an appeals court ruled Friday.

The court found that a constitutional amendment banning same-sex marriage had the effect of outlawing benefits for domestic partners. The amendment, approved by 59% of voters in 2004, states that only “the union of one man and one woman” is valid in Michigan, “as a marriage or … for any purpose.”

During the 2004 campaign, backers of the amendment repeatedly said it would not be used to take away domestic-partner benefits. “Nothing that’s on the books is going to change,” Kristina Hemphill, a campaign spokeswoman, told the Detroit News a week before the election.

After the amendment passed, state Atty. Gen. Mike Cox, a Republican, issued a legal opinion that public employers could no longer offer benefits to same-sex couples. The American Civil Liberties Union sued on behalf of 21 gay and lesbian couples.

Friday’s ruling rejected the ACLU’s arguments, holding that the amendment clearly prohibited employers from recognizing same-sex unions. …

Plaintiff Dennis Patrick, a professor at Eastern Michigan University, said the ruling disillusioned him. “I felt like we had been lied to during the campaign,” he said. “We were told it was only about defining traditional marriage. It turned out to be about healthcare and benefits.”

But Brad Snavely, a supporter of the amendment, said there had been no intent to deceive. “No one knew for sure what the language would mean,” said Snavely, executive director of the Michigan Family Forum.

Now that a court has said the language denies benefits, Snavely said, he hopes judges in other states will follow suit.

Of course, you may find Mr. Snavely disingenuous.

Or you may say that if legal realism would have us adopt Mr. Snavely’s nominal attitude towards legislation, we would be better off without it.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2007.
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