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Realism Redux?

By Jonathan Simon

Legal Realism, the intellectual movement that arose in a few elite law schools at the turn of the 20th century, was often satirized as offering the view that the most important determinants of the outcome of a legal case was not the facts, or the law, but what the judge ate for breakfast (who came up with that particular metaphor anyway?). By the 1960s much of the Realist opposition to the idea that law was a purely objective result of near scientific analysis had become common sense, but few defended a radical view of legal indeterminacy (a slogan taken up by the not very successful Critical Legal Studies movement). Until today?

According to Charlie Savage's reporting in the NYTimes, a recent study by the Justice Department's inspector general found that judges appointed under the now exposed program of choosing Bush loyalists in the recent administration have significantly lower rates of granting appeals by asylum seekers. A study last year titled Refugee Roulette, which examined a huge sample of immigration appeals concluded that "he facts of a case may be less important in determining whether someone is deported than which judge hears the case."

Full post as published by Berkeley Jurisprude on August 25, 2008 (boomark / email).