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Predictability of Realism - Coggle Diagram

- - - - Thus, concludes Frank, “ the personality of the judge is the pivotal factor in law administration ” ( 1930 , p. 111; cf. 1931 , p. 242). (Note, however, that no one in the idiosyncrasy wing actually adhered to the view, often wrongly attributed to realism, that “ what the judge ate for breakfast ” determines the decision.)
        But if “ the ultimately important infl uences in the decisions of any judge are the most obscure, and are the least easily discoverable ” ( 1930 , p. 114) precisely because they are these idiosyncratic facts about the psychology of the individual judge, then how will it be possible to formulate laws of judicial behavior? In fact, Frank repudiates this ambition of the behaviorists when he declares that, “ The truth is that prediction of most specifi c decisions … is, today at any rate, impossible ” ( 1931 , p. 246; cf. 1930 , passim ). The qualifi cation ( “ today at any rate ” ) is important: for the problem is not that there are no determinants of decision (Frank does accept a type of Freudian psychic determin-ism) but rather that such determinants are epistemologically opaque: we have no reli-able way of knowing what they are. But even Frank allowed that if judges became suitably self - aware – undergoing, say, psychoanalysis – then they could provide us with the information about their personalities that would make prediction possible ( 1930 , p. 163).
        
        Where decisions are bases on unfettered choice then there is no way to predict the decision. 280
        
        The problem for the idiosyncratic wing is epestimoloical: There are indeed dtderminants of decisions but they are inacesssible to the observer, the would be predictor of judicial decisons.
        
        No lawyer or scholar could possibly track all the pecuralities of life hhstory and psyhcological colouring that go into th eporcess of decision necessary to predct what judges do.
        
        When the fetters upon decisions are idiosyncratic the jey to rpediction will remain epistemologically opaque.
      - Frank initially thought it impossible
      - Ostensibly leiter does not agree that decisons made on the basis of idiosyncracies can be predictable
    - - Writers in the sociological wing of realism did not deny the relevance of the fact that judges are human beings with individual personalities (see Llewellyn, 1930 , pp. 80 – 1, 1931 , pp. 1242 – 3); rather they insisted that the relevant facts about judges qua human beings were not primarily idiosyncratic ones. As Cohen aptly put it (in answer to Hutcheson and Frank): “ Judges are human, but they are a peculiar breed of human, selected to a type and held to service under a potent system of government controls … A truly realistic theory of judicial decision must conceive every decision as something more than an expression of individual personality, as … even more importantly … a product of social determinants ” ( 1935 , p. 843). If writers like Frank emphasized the psychological profi le of the individual judge, writers like Llewellyn, Cohen, and Moore emphasized the “ sociological ” profi le of the judge, one he had in common with many others. Judicial decision is still primarily explicable in terms of psychosocial facts about judges (that determine how they respond to the facts of particular cases), it is just that these psychosocial facts are held to be general and common, rather than idiosyncratic.
        
        The sociological wing is so much more easy to predict the nature of a decision
        
        Judges enforce the norms of commercial culture or try to do what is socio-economically best on the facts of the cases. This should not be confused with the idiosyncratic wing which is more about how a personal judge feels.
        
        Consequently, there must be sociological as poosed to the idiosyncratic psychological profile of the kidges that explain the predictable uniformity of their deicison.283
    - - Frank's insight that "the personality of the judge is the pivotal factor in law administration."'" To concede this would, of course, pull us away from the Generality Thesis embraced by the mainstream of Realism-a thesis, moreover, that does seem apt for the sorts of commercial law disputes on which the Realists focused. But perhaps in areas like constitutional law-where the issues engage the personality of the judge in special ways-we need to reconsider the merits of Frank's approach. Of course, Frank conjoined his insight into the importance of personality with excessive skepticism about our capacity to attain epistemic access to the features of personality that are causally determinative. 9 Certainly on an orthodox conception of psychoanalytic method, we as mere observers could not hope to get access to the deep facts about personality that determine the course of decision. But psychoanalytic explanations are, importantly, on a con-tinuum with ordinary folk psychological explanations,199 and as with folk explanations, those of us living in the post-Freudian world have acquired a similar competence to observe and explain behavior in broadly Freudian terms. Perhaps, then, Frank's skepticism is unwarranted. Indeed, judicial opinions are a rich repository of material for the armchair "folk" psychoanalyst. Surely, for example, the astonishing rigidity of Justice Scalia's constitutional jurisprudence, especially his fear of "unconstrained" judgment2ff or Justice Thomas's almost pathological incapacity for-or unwillingness to engage-empathetic feelings,2"' both cry out for psycho-analytic explanations. If the Sociological Wing of Realism describes the right program of research for understanding the area of commercial law, there may yet be reasons .to think that the Idiosyncrasy Wing-minus Frank's skepticism-points the right way to a naturalized account of decisionmaking in other domains.2'
        
        As I argue elsewhere at some length, the majority of Realists advance a descriptive theory of adjudication according to which (1) legal reasoning is indeterminate (i.e., fails to justify a unique outcome) in those cases that reach the stage of appellate review; (2) appellate judges, in deciding cases, are responsive to the “situation types”—recurring factual patterns (e.g., “seller of a business promises not to compete with the buyer, and then tries to break the promise”)7—that elicit predictable normative responses (“this is unfair” or “this is economically foolish”) from most jurists, responses that are not, however, predictable based on existing “paper” rules and doctrine; and (3) in the commercial-law context (a primary focus of the Realists), judges look to the “normal” practices in the existing business culture in deciding what the right outcome is (that is, the judges treat normal economic practice as the normative benchmark for decision).
        
        R]ealist insights about judging” are in fact “plainly evident aspects of judging.”67 Is it really evident that in appellate cases, judges are primarily responding to factual situation types and then finding post hoc legal rationales for what they think would be “fair” or “sensible” given the situation type? (The critics of my interpretation of realism certainly do not think so!)68 But as we see above, by “realism” Tamanaha often does not mean the views distinctive of the Realists. What is “plainly evident,” he says, is that “the law has inconsistencies, runs out, and routinely comes up against unanticipated situations and that judges possess a substantial degree of flexibility when working with legal materials. It was obvious to observers that the law can be interpreted differently by judges with different views.”69 That view, stated at this level of generality, may be banal (except for Natural Law Formalists), but it is not clear that it is what is really at issue {llieter middle} 126.
        
        Chat Gpt explanation
        
        However, other scholars, including some Realists, suggest that while idiosyncratic factors play a role, they do not render law entirely unpredictable. They argue that even when judges’ personal perspectives influence their rulings, these decisions can still follow discernible patterns based on broader social, economic, and cultural influences that shape judges’ views in systematic ways. For instance, Jerome Frank, one of the proponents of Realism, noted that “judicial hunches” are not purely random but can be shaped by judges’ subconscious biases, which often reflect societal trends and shared experiences. This view aligns with later empirical studies that attempt to identify patterns in judicial behavior, such as political affiliation, past professional experience, or ideological leanings, which contribute to a degree of predictability even within the idiosyncratic framework.
        
        Traced back to broader social and political trends
        
        The place to begin is with the fact that the men of our appellate bench are human beings … And one of the more obvious and obstinate facts about human beings is that they operate in and respond to traditions … Tradition grips them, shapes them, limits them, guides them … To a man of sociology or psychology … this needs no argument. ( 1960 , p. 53)
        Radin suggested that “ the standard transactions with their regulatory incidents are familiar ones to him [the judge] because of his experience as a citizen and a lawyer ” ( 1925 , p. 358). Cohen, by contrast, simply lamented that “ at present no publication [exists] showing the political, economic, and professional background and activities of our judges ” ( 1935 , p. 846), presumably because such a publication would identify the relevant “ social ” determinants of decision. Lieter