Legal Commentary

We are one month or so into classes and I'm worried that my 1Ls have concluded that judges' opinions are determined by what they had for breakfast.  (Bell Atlantic's re-reading of Conley v. Gibson first pushed them this way.)  Putting aside the concerns that this badly mischaracterizes legal realism, my sense is that this attitude towards judicial decisionmaking gives them an excuse to throw up their hands and refuse to wrestle with lines of cases.  I do think it is a good lesson that judging involves the exercise of "judgment" and that reasonable minds may differ on many litigated issues.  But I also think that it is at least plausible that judges' decisions are limited by institutional constraints, the constraints of having to construct a legal argument that is not laughable, and/or educational norms.  I think it also ignores differences among the courts (e.g., district court vs. the Supreme Court) and among subjects (e.g., constitutional law vs. almost anything else).  One of my colleagues responded by pointing to Bush v. Gore, which is difficult to argue with, but I still don't want my students to start there; this early notion of legal realism is too much like a free pass.