Osler's Razor

I've been devoting Wednesdays to profiling my classmates in the Yale Law Class of 1990. Today, though, I'm going to reflect a little on the influence that the place had on me.

I'm just begun work on a new article, and one starting point is Karl Llewellen's 1930 classic, Bramble Bush,  which was written as a student's guide to law school. School was very quiet, and when I went to the library only the head librarian, Michael Robak, was there. I asked him if we had the book, and he looked at his computer. "We have it online on several sites, and a copy in the stacks," he told me, with an intonation that told me most people would use the online version. I wanted the real book though, and he helpfully went into the maze of stacks and came back with a cream-colored book, small, hard-bound and oddly reminiscent of a children's book. I had read it before, and once it was in my hands I lit into it again, right there standing in the entrance to the library.

Llewellen was one of a group of jurists and scholars in the 1920's and 30's often referred to as the "Legal Realists." I'm so old that when I was at Yale one of the last of them, famed international law scholar Myres MacDougal, was still roaming the halls. Our Dean, Guido Calabresi, had been their student.  I latched onto their ideas in law school and have never let go. 

In short, the Legal Realists believed that the formal aspects of the law-- statutes, precedent, etc.-- did not reveal the true nature of the legal process in real life. That process was shaped and deformed by the people involved in it, the judges and prosecutors and others with power. Because of that, it was necessary to use the techniques of the natural sciences, like observation and measurement of outcomes, to truly assess what is going on. A formalist may see that American laws are facially race neutral and declare that the system is not racist. A legal realist will measure outcomes and see the reality of disparate racial outcomes and conclude that the system-- as it actually exists-- is systemically racist. [for what it is worth, I'm not aware of the 20th century legal realists doing work on race, but I am using this example because it is what matters most in my field] If you have read my work (like this or this) you can see the profound influence these thinkers had on me.

The Legal Realists followed in the footsteps of-- and probably interacted with-- the Theatrical Realism movement. They even shared many of the same tenets, such as an affection for scientific observation. It's easy to imagine Llewellen, a resident of New York, going to a play by Eugene O'Neill, after all. I've been fascinated with the theatrical realists, too, and use one of their plays in the classroom. More than anything, I love the idea that art can influence us in our vocation of the law, as it has for me.

As I stood in the hallway with that old book in my hands, I came across this passage: "This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself." [italics in original]

That's what I believe, in one sentence. What prosecutors do with their discretion is the law itself, and often more important than the formalities of statutes and precedent. It is idiocy to pretend that there is an objective law that simply directs outcomes. 

That's also why I get so passionate about these things-- because not being a realist in law is too often to take theory over what is observably true. It infuriates me when people assert that Amy Coney Barrett (or any other judge) simply "interprets the law as it is written," as if there is some objective standard that simply must be discovered without reference to one's own experiences and beliefs. It's a lie. And it is a lie that perpetuates racism and every other kind of bias and injustice in our law.

Yale Law was a good place for developing passion. And for some of us, it stuck.

# posted by Mark Osler @ 1:00 AM