Legal Realism is not Just for Constitutional Law

Regular readers of this blog know that I self-identify as a legal realist and have authored many posts about how law plays only a minimal role in Supreme Court decisions compared to the justices’ personal values, politics, and experiences. While my view that the "Court is not a court," only applies to the Supreme Court, legal realism as a descriptive doctrine is much broader. Every day in this country, state and federal judges make important and consequential decisions where they have almost complete discretion to resolve the controversy any way they wish to under applicable legal standards. When they do so, law plays less of a role in those decisions than most people think.

For the purposes of this blog post, I will define legal realism as the view that in the actual resolution of concrete cases, judges frequently are not bound or even guided very much by formal legal materials such as constitutional provisions, statutes, regulations, or judicial precedents, and that therefore a judge’s character, experiences, politics, and ideology will be the dominant factors in explaining their decision, not the prior legal materials.

A classic and easy example of this phenomenon from the constitutional law world (just to make the point starkly) is that we know the late Justice Marshall's and Justice Thomas’s disagreements over affirmative action are not rooted in law but real-life values and experiences. No historical evidence would have moved Thomas off his position against affirmative action, and no amount of data was going to move Marshall off his position in favor of affirmative action. Law just cannot explain the differences in how these two justices viewed the same legal issue. 

But this phenomenon occurs every day in courts throughout the land on non-constitutional law issues that do not receive national attention and do not pose great questions over, say, conflicts between the values of equality and personal autonomy. Below are two representative examples that will suffice to make this point, but I could provide dozens just from my eight years of experiences as a law clerk and an attorney.

Disclaimer: I fully recognize that most lower court judges (at least outside the US Court of Appeals for the Fifth Circuit) take precedent seriously and know how to follow orders. Where there is direct and binding precedent, even hard-core legal realists like Dick Posner recognize that judges can and do follow orders from above. The problem, of course, is that it is extremely rare for a litigated case to raise issues that have been fully resolved before by higher courts, and that is why legal realism provides the most accurate picture of what judges do, both inside and outside of constitutional law.

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I was a law clerk for a federal judge in Atlanta in 1983. My judge was a conservative Republican who had unsuccessfully run for the Senate 15 years earlier. Judge Moye was a man of great judgment and character, and for what it is worth, would almost certainly be a moderate Democrat today.

We had a case where one of the lawyers for a relatively large client engaged in serious discovery abuse. Interrogatories went unanswered, depositions were unattended, and scheduled meetings cancelled at the last minute. He simply disappeared.

After we issued numerous show cause orders, and the other side’s lawyer asked for sanctions including dismissal of the plaintiff's case, the lawyer finally responded by asking for a short ex parte hearing with just the judge and then a meeting with both sides present. Judge Moye knew this lawyer, said he was generally trustworthy, and agreed to this procedure after the other side agreed to the short ex parte meeting.

During that meeting, the lawyer informed us that his wife of many years had left him out of the blue for a different man and his personal life was falling apart. He was sobbing and obviously a bit out of control. He owned his mistakes, promised he would do better, and implored the judge to sanction him but not the client. He also asked that we not share the precise details of his misfortune with the other side.

When the opposing attorney came in, she was reasonable and empathetic, but also argued that her client had been put to so much inconvenience and expense that some type of substantive sanction should be imposed as a remedy. Judge Moye took the issues under advisement.

Judge Moye had almost complete discretion to decide this issue in any direction, up to and including issuing a sanction that would severely hurt one of the parties. Appellate courts almost never reverse discovery sanctions, giving federal trial judges much needed space to handle such issues. There was no helpful prior law on the subject.

Judge Moye decided not to punish the client, issued strong sanctions against the offending attorney, and we drafted an order making it crystal clear that any further violations could lead to dismissal of the plaintiffs’ case. I left the clerkship before the case was completed, and I don’t know the end of the story.

Judge Moye could have issued far more severe or far less severe sanctions and still complied fully with the law. I am confident there are other good judges who would have sanctioned the client as well, maybe even dismissing the case, because the discovery abuses here were truly terrible.

Judge Moye’s decision was not dictated or even affected by prior law but by his own experience as a litigator and his non-legal character, which was as a man capable of great empathy. Decisions like the one I just described are made by thousands of state and federal judges every day in this country, and prior law is usually much less important than the judges’ personal values. More rule-oriented judges with little personal empathy, take a Judge Ho for example, would likely have made different decisions. Legal realism describes this reality much more accurately than any other theory of judging that I have encountered.

The second example is more representative of what most lawyers experience in state and federal courts throughout the land. We had a complicated controversy over a covenant not to compete in an employment contract. This was a diversity case, meaning the judge had to apply the substantive law of the state of Georgia. The problem was that the Eleventh Circuit had interpreted Georgia contract law in ways that were inconsistent with the Georgia Supreme Court cases on the same topic, but we were technically bound by both courts. There was simply no way out because the rule we picked would determine the result in the case.

Judge Moye asked me to review the state authorities and decide which court, the Georgia Supreme Court or the Eleventh Circuit, was more consistent with prior Georgia law. Trust me when I disclose that this task was impossible, and all I could do was state some general preferences and inform the judge that he “could go either way,” based on the law. In fact, even if there had been no Georgia Supreme Court law on the subject, there were conflicting Eleventh Circuit panel decisions (which technically is not allowed) that would have allowed Judge Moye to pick either one to fit his view on how the case should come out.

As I mentioned above, Judge Moye was a 1980s vintage moderate Republican, and he had a mild libertarian streak by the standards of the day. He had been a successful Georgia litigator for decades. Drawing upon his legal experiences informed by his personal values and predictions about future consequences on the ground, he decided the case in good faith the best way he could, but law played at most a minimal role.

These kinds of legal, factual, and discovery issues unanswered by prior law arise every day in thousands of courtrooms across the land. When they do, judges must do what they are supposed to do, judge, and as fallible humans with discretion, that judging is much more about personality than law.

I have heard dozens of experienced litigators tell my students over the years that the most important rule of litigation is first give the judge a reason to rule for your client and then provide the law supporting such a result. The reason this advice is universally given in that order is because legal realism describes accurately what judges do on the ground in real cases. And that reality is by no means limited to pure issues of law in the open spaces in appellate courts. 

Judges judge. They don't plug legal rules and a fact pattern into a computer or an AI generator and come up with a decision (though that day is likely and tragically coming).

In other words, legal realism is for everyone, not just egghead academics writing about constitutional law.