Legal Commentary

Below this post, Paul points to Larry Solum's reaction to Daniel Solove's claim that no one really believes that judges are neutral or that they do not make law, but rather "find it."  Paul is right to say that no one could believe in "perfect" neutrality, and that this means that we are all legal realists now "to some degree."

That statement is true, I think.  But I wonder whether those who consider themselves legal realists would embrace it.  I don't think Larry would disagree that underdeterminacy is a permanent feature of the law, and that judges will need to struggle with it.  Nobody could disagree with that.  I also really don't think that Daniel believes that authoritative legal materials are not binding and leave judges perfectly free to be non-neutral. 

Paul is right -- these are matters of degree.  Even more, they are matters of mood.  Some people are oriented more toward legal realism as a scholarly category for understanding the nature of judging.  Others are drawn to formalism.  Neither group believes in anything "perfect" about these scholarly categories.  Or if they do, they've allowed their allegiance to these abstractions to get the better of the way the world actually runs (find me a judge who is either a mechanical jurisprude or thinks he can do whatever he wants, no matter what the law says).  Scholars who hold these absolutist positions have fallen in love with their ideas -- they don't want them muddied by the realities of conflict and complication.  I don't think this is true of either Larry's or Dan's careful, nuanced, and always interesting and insightful scholarship.  But I do think that it is in the nature of legal scholarship to overstate the case for its favored scholarly categories.  Legal theory can tend, by its very nature and if not watched, toward dogmatism.  That is why statements like, "we are all legal realists now," at least in my view, ought to be avoided: they suggest (without Paul's very worthwhile reference to degrees of commitment) absolute allegiance to a scholarly category, where really what is meant is partiality to a mood.