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Academic

: Legal Theory Blog

Not All of Us

By Lawrence Solum

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Dan Solove has a typically articulate and thoughtful post on the confirmation process at Concurring Opinions:

no judge is neutral

we all know that judges don?t find the law but make it

The fact that ?we?re all legal realists now? makes the Supreme Court Justice confirmation process a political morass. It has also resulted in presidents picking candidates for the Court who are young and who lack an extensive paper trail on hot-button issues. (Emphasis added)

Not all of us. Solove's post reflects the conventional wisdom in the legal academy. And that conventional wisdom has some basis in reality. It is surely true that many American judges eschew neutrality and that the real basis of their decisions on their "ideology"--sometimes, even on overtly partisan grounds. And it is also surely true that judges are limited human creatures--and as a consequence good faith efforts at neutrality can be subverted by powerful biases. And it is also true that the sources of law (legal texts such as constitutions, statutes, and judicial opinions) frequently underdetermine outcomes.

But none of this implies that legal realism is inevitable or that judges must must "make the law". Legal systems vary in the degree to which they are "realist" or "formalist". Some legal systems are far more instrumentalist than the United States--in some legal systems outcomes are determined by bribes or directives from political operatives. Other legal systems are far more formalist than is the United States: most of the legal systems of western Europe fall into this category.

Law is a practice, an artefact of human culture. Judges can choose whether to decide cases on the basis of their own first-order normative beliefs about how cases should come out--or they can choose to adhere strictly to the directives contained in authoritative legal texts. Legal cultures can encourage and reward an instrumentalist approach to law, or they reinforce formalist practices and values. Judges can choose to exploit and expand legal underdeterminacy to create space for the expression of their own preferences through the law--or they can attempt to cabin the zones of underdeterminacy by acting on the basis of the widely shared and deeply held norms of the political communities that produce the laws.

Not all of us believe that "no judge is neutral." Not all of us believe that judges should make the law rather than apply or discover it. Not all of us are legal realists now.

Full post as published by Legal Theory Blog on May 11, 2010 (boomark / email).