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Published online by Cambridge University Press: 05 July 2022
The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.
1. Throughout this article ‘Realism’ will refer exclusively to American Legal Realism, rather than (a) Scandinavian Legal Realism or (b) metaphysical realism. Whatever they may have believed about the Scandinavians, the American Realists thought that metaphysically realist views of law are incredible.
2. Karl N Llewellyn, “On Reading and Using the Newer Jurisprudence” (1940) 40:4 Colum L Rev 581 at 587 reprinted in Jurisprudence: Realism in Theory and Practice (Transaction, 2008) 128 at 135 [Llewellyn, “Newer Jurisprudence”] [emphasis in original]. See also KN Llewellyn, “Karl Llewellyn” in Julius Rosenthal Foundation Northwestern University, ed, My Philosophy of Law: Credos of Sixteen American Scholars (Boston Law Book Co, 1941) 183 at 194 [Llewellyn, “My Philosophy”].
3. See Karl N Llewellyn, “A Realistic Jurisprudence—The Next Step” (1930) 30:4 Colum L Rev 431 [Llewellyn, “The Next Step”]; Karl N Llewellyn, “Some Realism About Realism: Responding to Dean Pound” (1931) 44:8 Harv L Rev 1222 [Llewellyn, “Responding to Pound”]; Karl N Llewellyn, “Legal Illusion (Law and the Modern Mind: A Symposium)” (1931) 31:1 Colum L Rev 82 at 83-84; Llewellyn, “My Philosophy”, supra note 2; Karl N Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed” (1950) 3:3 Vand L Rev 395 [Llewellyn, “Theory of Appellate Decision”]; KN Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana, 1951) [Llewellyn, The Bramble Bush]; Karl N Llewellyn, The Common Law Tradition: Deciding Appeals (Little, Brown & Company, 1960) [Llewellyn, Common Law Tradition]; Karl N Llewellyn, “On the Current Recapture of the Grand Tradition” in Jurisprudence: Realism in Theory and in Practice (Transaction, 2008) 215 at 218 [Llewellyn, “Grand Tradition”]; Karl N Llewellyn, The Theory of Rules, ed by Frederick Schauer (University of Chicago Press, 2011) [Llewellyn, Theory of Rules].
These four do not exhaust the set of Realist hypotheses of official decision. Others include the claim that, sometimes, officials really decide cases based upon ‘institutions’ (i.e., a malleable composite in an official’s mind of hundreds of legal rules), rather than just being guided by a single rule. See Karl N Llewellyn, The Case Law System in America, ed by Paul Gewirtz, translated by Michael Ansaldi (University of Chicago Press, 1989) at xxxv, 10 [Llewellyn, Case Law System]. Another hypothesis concerns the evolution of rules on the books in lines of cases, without necessarily identifying a specific ‘alternative’ driver as being the sole catalyst for those changes. See Edward H Levi, An Introduction to Legal Reasoning (University of Chicago Press, 1949) at 1-27; Michael Ansaldi, “The German Llewellyn” (1992) 58:3 Brook L Rev 705 at 734-40.
4. See Frederick Schauer, “Legal Realism Untamed” (2013) 91:4 Tex L Rev 749 [Schauer, “Legal Realism Untamed”]; Frederick Schauer, “American Legal Realism—Theoretical Aspects” in Mortimer Sellers & Stephan Kirste, eds, Encyclopedia of the Philosophy of Law and Social Philosophy (Springer, 2018), DOI: https://doi.org/10.1007/978-94-007-6730-0_67-3 [Schauer, “Theoretical Aspects”]. See also Frederick Schauer, “The Generality of Rights” (2000) 6:3 Leg Theory 323; Frederick Schauer, “Editor’s Introduction” in Llewellyn, Theory of Rules, supra note 3 [Schauer, “Editor’s Introduction”]; Frederick Schauer, “Forward” in William Twining, Karl Llewellyn and the Realist Movement, 2d ed (Cambridge University Press, 2012) ix [Schauer, “Forward”]; Frederick Schauer, “Legal Realism and Legal Reality” (2022) 13:1 Jurisprudence: Int’l J Leg & Pol Thought 113 [Schauer, “Legal Reality”].
5. The contemporary philosophical convention is to use all capitals to mark concepts. This is done to distinguish them from denotations of words, phrases, and terms, for which quotation marks are used instead.
6. Llewellyn, “Responding to Pound”, supra note 3 at 1237 [emphasis in original, bold emphasis added]. That article canvasses the work of twenty scholars whom Llewellyn and fellow Realist Jerome Frank deemed, howsoever contentiously, to be members of the Realist movement.
7. See ibid at 1235 & n 36. For a candidate list of the Realists’ shared ideas, views, and commitments, see ibid at 1236-38.
8. See e.g. ibid at 1249; Llewellyn, “The Next Step”, supra note 3 at 450; Herman Oliphant, “A Return to Stare Decisis” (1928) 14:2 ABA J 71 at 76 [Oliphant, “A Return to Stare Decisis”]; Herman Oliphant, “Stare Decisis—Continued” (1928) 14:3 ABA J 159 at 161 [Oliphant, “Stare Decisis: Continued”].
9. See e.g. Llewellyn, “Responding to Pound”, supra note 3 at 1246; Llewellyn, “Newer Jurisprudence”, supra note 2 at 152. Llewellyn nonetheless suggests that Roscoe Pound was the Realists’ source for some of (bases for) the alternative candidate determinants. See Llewellyn, “The Next Step”, supra note 3 at 435, n 3; KN Llewellyn, “Roscoe Pound” in Jurisprudence: Realism in Theory and Practice (Transaction, 2008) 495 at 496. See e.g. Roscoe Pound, “Law in Books and Law in Action” (1910) 44:1 American L Rev 12 at 12, 15, 18-19, 20-22. However, certain of these can be traced through Pound to Rudolph von Jhering and certain European schools of thought, in addition to having American antecedents. See e.g. Hermann Kantorowicz, “Some Rationalism About Realism” (1934) 43:8 Yale LJ 1240 at 1240-41; Letter from Mr. Justice Holmes to Harold J Laski (November 10, 1930) in Mark DeWolfe Howe, ed, Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J Laski 1916-1935, vol 2 (Harvard University Press, 1953) at 1296 (Holmes discussing Llewellyn); Brian Z Tamanaha, “Legal Realism in Context” in Elizabeth Mertz, Stewart Macaulay & Thomas W Mitchell, eds, The New Legal Realism, Volume I: Translating Law-and-Society for Today’s Legal Practice (Cambridge University Press, 2016) 147. See also Llewellyn, “Newer Jurisprudence”, supra note 2 at 149-50.
10. The Realists did not advance a uniform view of this matter either.
11. For explicit treatments, see e.g. Lawrence B Solum, “On the Indeterminacy Crisis: Critiquing Critical Dogma” (1987) 54:2 U Chicago L Rev 462; Brian Leiter, “Legal Indeterminacy” (1995) 1:4 Leg Theory 481. Cf Llewellyn, The Bramble Bush, supra note 3 at 73.
12. See Brian Leiter, “American Legal Realism” in Martin P Golding & William A Edmundson, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell, 2005) 50 at 51 [Leiter, “American Legal Realism”]; Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007) at 79 [Leiter, Naturalizing Jurisprudence].
13. Leiter, Naturalizing Jurisprudence, supra note 12 at 9-12.
14. Cf ibid at 9-10.
15. Cf Llewellyn, Common Law Tradition, supra note 3 at 27, n 18.
16. For example, Leiter suggests that the Realists did not locate under-determinacy in the rules themselves, but rather in the means of characterizing which rules are contained in a statute or precedent. See Leiter, “American Legal Realism”, supra note 12 at 64. Certain Realists offer alternative reasons for legal under-determinacy other than the rules. For example, Frank emphasizes a judge’s legal power to characterize the facts of a given case (and so to choose which facts are to be treated as being legally significant and which not). See Jerome Frank, Law and the Modern Mind (Doubleday & Company, 1949) at ix-x; Leiter, Naturalizing Jurisprudence, supra note 12 at 9.
17. See e.g. Oliphant, “Stare Decisis: Continued”, supra note 8 at 159, n 5, 160; Felix S Cohen, “The Problems of a Functional Jurisprudence” (1937) 1:1 Mod L Rev 5 at 10-12 [Cohen, “Functional Jurisprudence”]. Hanoch Dagan claims that HLA Hart ‘domesticated’ the under-determinacy issue for a particular rule’s interpretation and application, and thus the problem resides in the grounds for determining which rule to apply to a given case. See Hanoch Dagan, “The Realist Conception of Law” (2007) 57:3 UTLJ 607 at 613-17. Cf Llewellyn, Common Law Tradition, supra note 3 at 5, 22 (selection from amongst a multiplicity of possible interpretations of a given precedent). However, the tension between unwritten working rules and extra-legal factors identified in this article undermines Dagan’s ‘domestication’ claim.
18. See Leiter, Naturalizing Jurisprudence, supra note 12 at 9; Leiter, “American Legal Realism”, supra note 12 at 51-52, 64.
19. See Llewellyn, “My Philosophy”, supra note 2 at 194. Cf Llewellyn, Common Law Tradition, supra note 3 at 180.
20. See e.g. Karl N Llewellyn, “The Effect of Legal Institutions Upon Economics” (1925) 15:4 American Economic Rev 665 at 665; Karl N Llewellyn, “Some Realism About Realism—Responding to Dean Pound” in Jurisprudence: Realism in Theory and Practice (Transaction, 2008) at 61 & n d (the lettered footnote was added thirty years later for this monograph version of “Responding to Pound”).
21. See e.g. Llewellyn, “Newer Jurisprudence”, supra note 2. See also Underhill Moore & Gilbert Sussman, “Legal and Institutional Methods Applied to the Debiting of Direct Discounts: II. Institutional Method” (1931) 40:4 Yale LJ 555 at 560-62; Oliphant, “Stare Decisis: Continued”, supra note 8 at 161.
22. See Wilfred E Rumble, American Legal Realism: Skepticism, Reform, and the Judicial Process (Cornell University Press, 1968) at 171-75. The Realists never produced a systematic theory of the “social determinants” of judicial decisions. See Brian Leiter, “Legal Realism and Legal Doctrine” (2015) 163:7 U Pa L Rev 1975 at 1979 [Leiter, “Legal Doctrine”].
23. See Llewellyn, “Responding to Pound”, supra note 3 at 1237.
24. See e.g. Llewellyn, “Newer Jurisprudence”, supra note 2 at 145, 150-51.
25. Ibid at 135; Llewellyn, Theory of Rules, supra note 4 at 63-64; Llewellyn, “My Philosophy”, supra note 2 at 188. See also Roscoe Pound, Jurisprudence, vol 4 (West, 1959) at 452-57.
26. Llewellyn, “Newer Jurisprudence”, supra note 2 at 143, 151. Cf Llewellyn, “Theory of Appellate Decision”, supra note 3 at 396; Roscoe Pound, “The Theory of Judicial Decision” (1923) 36:6 Harv L Rev 641 at 652-54.
27. See Llewellyn, “My Philosophy”, supra note 2 at 184; Llewellyn, Theory of Rules, supra note 3 at 64.
28. Llewellyn, “Newer Jurisprudence”, supra note 2 at 133 [emphasis added].
29. Cf Leiter, “American Legal Realism”, supra note 12 at 55-56 on the features of the “sociological”, in contrast to the “idiosyncratic psychological”, profile of judges. See also Leiter, Naturalizing Jurisprudence, supra note 12 at 28-30, 44-45, 89-90, 111-12 on the sociological vs. psychological “wings” (camps) of Realists.
30. Llewellyn also notes a division of crafts amongst different kinds of legal actors: counsellors, advocates, judges, administrators, etc. See Llewellyn, “My Philosophy”, supra note 2 at 188, 191.
31. See Llewellyn, “The Next Step”, supra note 3 at 451, n 18, 452, n 19. Additional factors are addressed in Llewellyn, “Newer Jurisprudence”, supra note 2 at 133, 140, 143, 145, 152 and Llewellyn, “My Philosophy”, supra note 2 at 194. See also Schauer, “Legal Realism Untamed”, supra note 4 at 754-56.
32. See e.g. Llewellyn, “My Philosophy”, supra note 2 at 196-97; Llewellyn, Common Law Tradition, supra note 3 at 45-51.
33. Llewellyn, Common Law Tradition, supra note 3 at 19-51. See also Llewellyn, Case Law System, supra note 3 at 76-78. See also infra note 51 on ‘foredoomed’ appellate court cases.
34. Llewellyn, “Newer Jurisprudence”, supra note 2 at 132.
35. Ibid. Cf Llewellyn, Common Law Tradition, supra note 3 at 24.
36. Llewellyn, “Newer Jurisprudence”, supra note 2 at 136; Llewellyn, Common Law Tradition, supra note 3 at 24. See also Cohen, “Functional Jurisprudence”, supra note 17 at 16; Rumble, Skepticism, supra note 22 at 158, 171, 179-80. Llewellyn deemed it to be a virtue for officials to be afforded some discretion, precisely so they can decide cases and reshape the rules in ways that meet their sense(s) of justice. See e.g. Llewellyn, “Newer Jurisprudence”, supra note 2 at 137, 159.
37. Llewellyn, “Newer Jurisprudence”, supra note 2 at 140-41. See also Cohen, “Functional Jurisprudence”, supra note 17 at 9; Dan Priel, “Law is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea” (2020) 68:3 Buffalo L Rev 899.
38. See e.g. Llewellyn, “Newer Jurisprudence”, supra note 2 at 133, 149.
39. See e.g. Llewellyn, Theory of Rules, supra note 3 at 40: “Another type of factor would seem to be the personal skill, intuition, artistry, or thumb-fingeredness and obtuseness, of particular individuals at the bar and on the bench.” On ‘thumb-fingeredness’ see ibid at 80, n 6 (editor’s footnote). See also Llewellyn, The Bramble Bush, supra note 3 at 65-66; Llewellyn, “Newer Jurisprudence”, supra note 2 at 141, n c; Llewellyn, Common Law Tradition, supra note 3 at 24, 30-31; Brian Leiter, “Legal Formalism and Legal Realism: What is the Issue?” (2010) 16:2 Leg Theory 111 at 125, n 64 (on the role of a judge’s politics in decision) [Leiter, “What is the Issue?”].
40. Llewellyn, “Responding to Pound”, supra note 3 at 1246 & n 60.
41. See e.g. Llewellyn, Common Law Tradition, supra note 3 at 24, 30-31; Llewellyn, “Newer Jurisprudence”, supra note 2 at 140. See also Cohen, “Functional Jurisprudence”, supra note 17 at 9; Patrick J Rohan, “The Common Law Tradition: Situation Sense, Subjectivism or ‘Just-Result’ Jurisprudence?” (1963) 32:1 Fordham L Rev 51 at 61, n 30 (discussing Llewellyn, Common Law Tradition, supra note 3 at 226). Cf Oliver Wendell Holmes, Jr, “Book Notices” (1871-72) 6 American L Rev 723 at 724; Walter Wheeler Cook, “The Logical and Legal Bases of the Conflict of Laws” (1924) 33:5 Yale LJ 457 at 487.
42. See e.g. Llewellyn, The Bramble Bush, supra note 3 at 90; Brian Leiter, “Explaining Theoretical Disagreement” (2009) 76:3 U Chicago L Rev 1215 at 1226-27 [Leiter, “Theoretical Disagreement”]. See also infra note 124.
43. See e.g. infra note 51 on ‘foredoomed’ appellate court cases. Felix Cohen noted that, although such factors indicate a “large realm of uncertainty in the actual law”, they seem difficult to square with the—observed—“significant body of predictable uniformity in the behavior of courts.” Felix Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 35:6 Colum L Rev 809 at 843 [Cohen, “Transcendental Nonsense”]. In theory, this concern could be obviated by affixing relative weights to the factors (social, idiosyncratic) in different types of officials’ decisions and in various contexts. Perhaps only ‘in theory,’ though…
44. See e.g. Michael Steven Green, “Leiter on the Legal Realists” (2011) 30:4 Law & Phil 381 at 384.
45. See Llewellyn, Common Law Tradition, supra note 3 at 215-17, 274, 447.
46. See e.g. Llewellyn, “Newer Jurisprudence”, supra note 2 at 140, n 13.
47. See e.g. ibid at 139, 149; Llewellyn, Common Law Tradition, supra note 3 at 4-5.
48. See e.g. Llewellyn, Common Law Tradition, supra note 3 at 51, 515-16 (cf ibid at 26, 121); Llewellyn, “Newer Jurisprudence”, supra note 2 at 130, 134-36; Llewellyn, Case Law System, supra note 3 at 11. See also Llewellyn, “My Philosophy”, supra note 2 at 196-97; Ansaldi, supra note 3 at 754, discussing KN Llewellyn, Recht, Rechtsleben und Gesellschaft, ed by Manfred Rehbinder (Duncker & Humblot, 1977) at 64 [Llewellyn, RGG]. He additionally claims that the background understandings or conditions plus such extra-legal factors inform or buttress the legal rules themselves. See Llewellyn, “My Philosophy”, supra note 2 at 184, 193, 195.
49. See e.g. Llewellyn, “Newer Jurisprudence”, supra note 2 at 135-36.
50. Llewellyn, Theory of Rules, supra note 3 at 94.
51. Karl N Llewellyn, “Our Case Law of Contract: Offer and Acceptance, I.” (1938) 48:1 Yale LJ 1 at 12, n 25. By 1960 at least, following Justice Benjamin Cardozo’s claims from the 1920s, Llewellyn asserts that a considerable percentage of American appellate court cases really are “foredoomed”, i.e., their outcome is basically certain ex ante. The remainder are not. Llewellyn, Common Law Tradition, supra note 3 at 25 & n 16, 45, discussing Benjamin N Cardozo, The Growth of the Law (Yale University Press, 1924) at 60 (stating that 90% of cases are “predestined” by the legal rules). Cf Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) at 164-65. (Depending how one understands his earlier work, this stance may or may not reflect Llewellyn’s Realism having become (even) more moderate in his later years.) The questions then become (1) what best explains the supermajority of cases’ foredoomedness and (2) why the residual is not foredoomed.
52. Llewellyn, “Newer Jurisprudence”, supra note 2 at 142, 153.
53. Ibid at 133, 140-41, 143.
54. Ibid at 133, 140-43.
55. Charles E Clark & David M Trubek, “The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition” (1961) 71:2 Yale LJ 255 at 263-68. Clark had been a judge on the United States Court of Appeal for the Second Circuit for about twenty-two years by the time of his co-authoring this article.
56. Ibid at 263. Cf Llewellyn, Common Law Tradition, supra note 3 at 32, 35, 40-41, 463, 515.
57. Schauer, “Forward”, supra note 4 at xxiii.
58. See e.g. Llewellyn, “The Next Step”, supra note 3 at 444-57; Llewellyn, “Responding to Pound”, supra note 3 at 1222.
59. See e.g. Llewellyn, “The Next Step”, supra note 3 at 439, n 9, 444, 447-50; Cohen, “Functional Jurisprudence”, supra note 17 at 6, 9. This distinction can be traced back (at least) to Walter Bagehot, The English Constitution, new edition (Henry S King & Co, 1872) at 1, 164. See also Woodrow Wilson, Congressional Government: A Study in American Politics (Houghton Mifflin Company, 1885) at 9-10.
60. See e.g. Llewellyn, “The Next Step”, supra note 3 at 439, n 9.
61. Llewellyn therefore seems to diverge from several other Realists by affording some subset of book rules a dispositive role in official decision. He notes “[a]t times Moore (chiefly in conversation), Oliphant … and Sturges … seem to me to verge upon a position which escapes my understanding: that the judges’ reactions to the facts in such cases are only negligibly influenced by the orthodox rules.” Llewellyn, “Responding to Pound”, supra note 3 at 1241, n 46. “Oliphant wholly misses the guidance in an appellate opinion.” Llewellyn, Common Law Tradition, supra note 3 at 14, n 9. On (some) rules providing guidance and some control and “narrow[ing] the spread of possible decision”, see e.g. Llewellyn, “Newer Jurisprudence”, supra note 2 at 142-43; Llewellyn, Common Law Tradition, supra note 3 at 179-80. See further infra notes 138-140 and the accompanying texts. For other Legal Realists, moreover, the ‘laws in action’ might not really be best characterized as ‘rules’ per se.
62. Llewellyn, “The Next Step”, supra note 3 at 439, n 9.
63. Ibid at 448 [bold emphasis added]. What constitutes ‘legal doctrine’ for Llewellyn? In 1930, the content of a rule (the ‘accepted doctrine’ of a mere paper rule, laid down in a court decision, say) or otherwise. Ibid at 448-49. By 1960, the ‘body of doctrine’ is said to include, not just the language of the rules, but also “the accepted lines of organizing and seeing these materials: concepts, ‘fields’ of law with their differential importance, pervading principles, living ideals, tendencies, constellations, tone.” Llewellyn, Common Law Tradition, supra note 3 at 20. See also Llewellyn, Theory of Rules, supra note 3 at 70, 71, 72, 94-100, 104: legal rules contain categories, which are in turn shaped by the law’s larger classifications (e.g., tort, contract, etc.).
64. See e.g. Llewellyn, “Responding to Pound”, supra note 3 at 1237: “tentative adoption of the theory of rationalization”; Llewellyn, Case Law System, supra note 3 at 55, 79; Llewellyn, Common Law Tradition, supra note 3 at 12, 56. See also Oliphant, “Stare Decisis: Continued”, supra note 8 at 159, n 5; Cohen, “Transcendental Nonsense”, supra note 43 at 812; Frank, supra note 16 at 104 (footnote on Chancellor Kent’s view); Leiter, “American Legal Realism”, supra note 12 at 50; Leiter, Naturalizing Jurisprudence, supra note 12 at 61-62.
65. See e.g. Llewellyn, “The Next Step”, supra note 3 at 450: “One observes how strongly ingrained is the tradition of requiring a good paper justification, in terms of the accepted paper rules, before any decision, however appealing on the facts, can be regarded as likely of acceptance.” See also Leiter, Naturalizing Jurisprudence, supra note 12 at 79-80, 190. Even so, Llewellyn implies that different tiers of courts draft their opinions somewhat differently, i.e., the Supreme Court of the United States’ opinions are “too much consciously built for public view” because it is the court which (its members know) is most “in the public eye.” See Llewellyn, Common Law Tradition, supra note 3 at 514.
66. See Llewellyn, “The Next Step”, supra note 3 at 439, n 9.
67. Ibid at 439, n 8 [emphasis in original].
68. Ibid at 449.
69. Ibid at 444; Schauer, “Legal Realism Untamed”, supra note 4 at 773-78.
70. Llewellyn, “The Next Step”, supra note 3 at 444; Schauer, “Legal Realism Untamed”, supra note 4 at 771.
71. See Schauer, “Editor’s Introduction”, supra note 4 at 24-25.
72. Llewellyn, “The Next Step”, supra note 3 at 439, n 9 [emphasis in original].
73. Ibid.
74. Ibid at 439 n, 7a [emphasis in original]. See also Llewellyn, Common Law Tradition, supra note 3 at 61 [emphasis in original]: “the importance, for instance, of noting that such an inadequate term as “rule of decision” connotes a “practice of decision” on the one hand, a “rule for decision” on the other, which two may or may not coincide or even co-exist, so that for purposes of analysis “rule of decision” becomes a clumsy and tricky tool.”
75. See Llewellyn, “The Next Step”, supra note 3. See also David Moskowitz, “The American Legal Realists and an Empirical Science of Law” (1966) 11:3 Vill L Rev 480 at 499-500; Gerald Postema, Legal Philosophy in the Twentieth Century: The Common Law World (Springer, 2011) at 107-09.
76. Llewellyn, “The Next Step”, supra note 3 at 439, n 9.
77. Cf ibid at 451-52 on “verbal formulation.” For a slightly different interpretation of Llewellyn’s working and paper rules, see Postema, supra note 75 at 108.
78. In an earlier article, Llewellyn invoked John R. Commons’ conception of A WORKING RULE:
Wherever custom has not crystallized, rules can really regulate conduct, prevent evils and disputes, only where the approved rules are known to men before they act. Rules only to be found by expert searching are not known. They may be admirable for decision of disputes; they cannot be working rules which will prevent such dispute… [Roscoe] Pound has developed the idea of rules of law as “norms of conduct,” as opposed to standards of judgment or rules of decision of disputes. Commons has married this concept with [William G.] Sumner’s “folkway,” in his concept of working rules, which (I) may be law-created, but (II) more commonly are created by men’s experiment, and only later taken over by the law.
Llewellyn, “Effect Upon Legal Institutions”, supra note 20 at 671 & n 20 [emphasis in original, Roman numerals added], referencing John R Commons, Legal Foundations of Capitalism (Macmillan Co, 1924). Roman numeral (I), the ‘law-created,’ seems to concern what I have labelled as Variety 2 Type B.
79. Llewellyn’s conception can perhaps be contrasted with what Arthur Corbin calls a ‘tentative working rule’: a generalization whose content and constituent concept/category evolves with the facts of cases (and perhaps extra-legal factors). See Arthur L Corbin, “A Tribute to Karl Llewellyn” (1962) 71:5 Yale LJ 805 at 812; Laura Kalman, Legal Realism at Yale, 1927-60 (University of North Carolina Press, 1986) at 234-35, n 12, quoting Letter from Arthur Corbin to Karl Llewellyn (29 Jan 1961) in Llewellyn, Karl N Papers, Chicago, Hanna Holborn Gray Special Collections Research Center (R/3/5). See also Cardozo, Judicial Process, supra note 51 at 23-25. Cf William Twining, Karl Llewellyn and the Realist Movement, 2d ed (Cambridge University Press, 2012) at 232, quoting KN Llewellyn, “Case Law” in Edwin RA Seligman & Alvin Johnson, eds, The Encyclopaedia of Social Sciences, vol 3 (Macmillan Co, 1931) at 249 for a view of rules as “generalizations… when taken as normative for future disputes….” See also Llewellyn, Theory of Rules, supra note 3 at 56-62; Llewellyn, Common Law Tradition, supra note 3 at 510 for a conception of a rule as a statistical generalization—though he seems to deny that it constitutes an adequate one for legal rules.
80. I submit that Llewellyn’s unwritten working rules, or at least some of them, could be legal norms, ones that can fall under Legal Positivism’s rule(s) of recognition. (This, as opposed to just being non-legal normative considerations that can figure into official decision.) Merely failing to be on the books or being extra-doctrinal does not perforce entail that an unwritten working rule must be an extra-legal norm. See David Frydrych, “Realism & Positivism”, Jurisprudence: An International Journal of Legal and Political Thought [forthcoming]. (At least at certain points in his corpus, Llewellyn appears to endorse a version of Legal Positivism. See e.g. Llewellyn, Theory of Rules, supra note 3 at 100-01.)
81. Llewellyn, “The Next Step”, supra note 3 at 444 [emphasis in original].
82. Llewellyn, “The Next Step”, supra note 3 at 448 [bold emphasis added]. See also Rumble, Skepticism, supra note 22 at 149-50.
83. Llewellyn repudiated portions of it as muddled; particularly, its being unable to account for the “reasonable regularity of judicial behavior” and failing to distinguish trial from appellate courts. KN Llewellyn, “A Realistic Jurisprudence: The Next Step”, reprinted in Jurisprudence: Realism in Theory and Practice (Transaction, 2008) 3 at 21, n 13 (its bracketed portion). Cf Llewellyn, Theory of Rules, supra note 3 at 66-67 on the difficulty of making useful predictive statements and the failings of communicating predictive generalizations as ‘rules’ amongst ‘law folk.’
84. But see Wilfred Rumble, Jr, “Law as the Effective Decisions of Officials: A ‘New Look’ at Legal Realism” (1971) 20 Journal of Public Law 215 at 220, 228-29; Rumble, Skepticism, supra note 22 on the descriptive-predictive nature of Realist accounts, which reflect an effort to emulate or apply social scientific methods.
85. See Oliphant, “A Return to Stare Decisis”, supra note 8 at 72, contrasting different senses of ‘decision’: the ‘naked judgment’ or order entered versus “a proposition of law covering a group of fact situations of a group as a minimum [of two fact situations], the fact situation of the instant case and at least one other.”
86. Llewellyn’s is not the only Realist conception. For example, Leiter’s ‘rational reconstruction’ of Realism, which treats situation-types as the keystone to its account of (appellate court) decision, also includes real rules. For him, ‘real’ rules are non-legal normative considerations that might be called ‘rules.’ Leiter, Naturalizing Jurisprudence, supra note 12 at 108-09, 112. See also Leiter, “What is the Issue?”, supra note 39 at 119-20, discussing non-legal normative considerations, such as norms of fairness and efficiency gleaned from commercial practices, which appellate judges really rely on to reach their conclusions after having covertly classified the particular case before them in terms of a pertinent situation-type (instead of relying on a book rule’s category/concept and normative content to do so.) Leiter’s real rules, or at least some of them, might therefore track Llewellyn’s working rule Variety 2 Type A, if they are not simply the normative content affiliated with situation-types (if a situation-type and that type of working rule are not identical, that is).
87. See e.g. Max Radin, “The Theory of Judicial Decision: Or How Judges Think” (1925) 11:6 ABA Journal 357; Oliphant, “A Return to Stare Decisis”, supra note 8; Llewellyn, Common Law Tradition, supra note 3. Cf Pound, “The Theory of Judicial Decision”, supra note 26 at 646: a generalized type of situation of fact is defined and established. (Leiter defines a situation-type as a recurring factual pattern that elicits predictable normative responses from most officials. Leiter, “What is the Issue?”, supra note 39 at 112.)
88. Llewellyn, Common Law Tradition, supra note 3 at 60, 121-28, 206-08; Llewellyn, “Grand Tradition”, supra note 3 at 218. Cf Llewellyn, Theory of Rules, supra note 3 at 110. (In one work at least, Llewellyn seemingly treats situation-types as being akin to central cases. See Llewellyn, Theory of Rules, supra note 3 at 107, 109, 115, 117. On central cases and how they are used, see David Frydrych, “Down the Methodological Rabbit Hole” (2017) 49:147 Crítica 41 at 49-53.)
89. See e.g. Oliphant, “A Return to Stare Decisis”, supra note 8 at 75; Llewellyn, Common Law Tradition, supra note 3. Cf Radin, supra note 87. See also Twining, supra note 79 at 216-27; Leiter, “Legal Doctrine”, supra note 22 at 1977; Postema, supra note 75 at 128-29.
90. See Llewellyn, Common Law Tradition, supra note 3 at 245, 268; Llewellyn, “Grand Tradition”, supra note 3 at 222 for his preferred “formula[e]” for appellate court decision-making.
91. See Llewellyn, Common Law Tradition, supra note 3 at 44, 200. Space does not allow for a proper discussion of the matter here, but it is worth further assessing how the notion of using situation-types to reshape book rules relates to some Realists’ advocacy of replacing the large, ambiguous, overly general and abstract (1) doctrinal categories and (2) legal rules with ‘narrower’ ones. See e.g. Llewellyn, “Responding to Pound”, supra note 3 at 1237, 1240-41 & n 45; Oliphant, “Stare Decisis: Continued”, supra note 8 at 160.
92. “Situation-sense will serve well enough to indicate the type-facts in their context and at the same time in their pressure for a satisfying working result, coupled with whatever the judge or court brings and adds to the evidence, way of knowledge and experience and values to see with, and to judge with.” Llewellyn, Common Law Tradition, supra note 3 at 60. See ibid at 121-22. Also note “…the balanced shrewdness of the expert in the art.” Ibid at 201. But see also KN Llewellyn, “American Common Law Tradition, and American Democracy”, in Jurisprudence: Realism in Theory and Practice (Transaction, 2008) 282 at 301: there is a residual non-expert aspect which reflects the community’s ‘horse sense’ of things.
Llewellyn claims that individual judges’ situation-senses are conditioned by their guild experience. This in turn is said to help to tame (and re-shape) the judges’ subjective, personal values and judgements (the idiosyncratic factors), thereby preventing them from predominating in official decision-making. Clark and Trubek nonetheless show why Llewellyn’s Common Law Tradition account actually requires that appellate court judges make personal value judgements in order to be able to even discern, letalone shape or use, situation-types. For Llewellyn’s account suggests that the construction, discovery, and employment process rests entirely on an individual judge’s particular “feel of the facts.” Clark & Trubek, supra note 55 at 261 & n 24. See also Corbin, supra note 79 at 811 on judicial choices being necessarily “the result of the combination and cross-fertilization of ‘subjective preferences.’”
93. 217 NY 382 (1916).
94. Llewellyn, “Grand Tradition”, supra note 3 at 223.
95. Compare Llewellyn, Common Law Tradition, supra note 3 at 44 & n 37, 71, 157, 200, 333, 474, 487, 504-05; Twining, supra note 79 at 217-18, 222, 227; Leiter, Naturalizing Jurisprudence, supra note 12 at 23 (calling Llewellyn’s Common Law Tradition account of situation-types ‘cryptic’), 27; Leiter, “What is the Issue?”, supra note 39 at 112; Rumble, Skepticism, supra note 22 at 236.
Twining suggests that a situation-type either comes with a cognate policy or principle (a norm which seems to be “immanent” in the factual situation), or at least points to a principle (or a range of them) held by a particular social group. Twining, supra note 79 at 222. In the latter scenario, regardless of whether the situation-type concerns a particular community or the entire society, the group in question may exhibit a consensus about which (social, not legal) principles or policies are appliable to the type of situation at hand. Even if there is no agreement over that policy, the particular social group may nonetheless also exhibit a consensus about how to limit the range of choices for an appropriate policy or principle. Ibid at 227.
In criticizing Realists’ suggestion that certain situation-types will incline officials to adopt the customs/norms of commercial actors as the basis by which to really decide cases instead of the book rules, Lon Fuller casts doubt on whether (and how) most judges actually know what the community’s business (or other social) practices and norms even are. Lon L Fuller, “American Legal Realism” (1934) 82:5 U Pa L Rev 429 at 458-59, n 70.
96. But see Llewellyn, Common Law Tradition, supra note 3 at 44, 157, 200; Llewellyn, “Grand Tradition”, supra note 3 at 218.
97. Depending upon their relationship, where a situation-type’s category/concept differs from a (paper) rule’s doctrinal category, conceivably, it could also be used to show how a Llewellynite unwritten working rule’s category differs from a paper rule’s doctrinal one.
98. Llewellyn advances the Situation-Type hypothesis as a non-exclusive/partial account of decision in his earlier work (see e.g. Llewellyn, Case Law System, supra note 33 at 79-80; Llewellyn, “The Next Step”, supra note 3 at 438; Karl Llewellyn, Cases and Materials on the Law of Sales (Callaghan & Co, 1930) xxiii, discussed in Ansaldi, supra note 3 at 732 n 109). However, it became far more prominent in his later writings.
99. Schauer, “Legal Realism Untamed”, supra note 4 at 750-51 & n 5.
100. Schauer, “Legal Realism Untamed”, supra note 4 at 750-51.
101. Ibid at 750, 766; Schauer, “Editor’s Introduction”, supra note 4 at 23.
102. See Schauer, “Legal Realism Untamed”, supra note 4 at 766-67, 776; Schauer, “Theoretical Aspects”, supra note 4 at 7.
103. Schauer, “Legal Realism Untamed”, supra note 4 at 767.
104. Ibid at 766-68, 776.
105. Schauer, “Editor’s Introduction”, supra note 4 at 23.
106. Schauer, “Legal Realism Untamed”, supra note 4 at 768.
107. Schauer, “Editor’s Introduction”, supra note 4 at 27-28.
108. Ibid at 23 [emphasis added].
109. Ibid at 18 [emphasis added]. See also ibid at 19 & n 48.
110. Schauer, “Legal Realism Untamed”, supra note 4 at 767 [emphasis added and citations omitted]. “But “speed limit 74” is nowhere to be found in the official law, which is exactly what Llewellyn and [other Realists] sought to highlight.” Ibid at 768.
111. Ibid at 767, n 81 [emphasis added]. See Schauer, “Editor’s Introduction”, supra note 4 at 19-21 on a causal relationship between the paper rule’s content and that of the cognate [working] rule, e.g., the [working] rule’s speed limit being 74 mph in part because it is in the ballpark of the paper rule’s 65 mph content. Any such causal influence is an empirical question, however. Ibid at 21.
112. Schauer also seemingly downplays situation-types and a situation-sense’s role in his account. Schauer, “Legal Realism Untamed”, supra note 4 at 755 & nn 21-22.
113. See supra note 78, mentioning Roscoe Pound’s carving this distinction.
114. Cf Llewellyn, Theory of Rules, supra note 3 at 57.
115. Ibid at 61-62 [emphasis in original]. See also Llewellyn, “The Next Step”, supra note 3 at 437-38, 448 vis-à-vis legal rights.
116. Cf Leslie Green, “Positivism, Realism, and Sources of Law” in Torban Spaak & Patricia Mindus, eds, The Cambridge Companion to Legal Positivism (Cambridge University Press, 2021) 39 at 45. This appears to be Schauer’s understanding of the Realism too. See Schauer, “Legal Realism Untamed”, supra note 4 at 773. However, he also believes that Legal Realism is predicated upon, or assumes, a Razian version of Exclusive Legal Positivism. See Schauer, “Theoretical Aspects”, supra note 4 at 2. Under that view, paper rules are equally valid norms of a legal system: officials will consider ‘paper’ rules to be valid norms of the legal system per their rule(s) of recognition because they are to be employed—in the least—in the public presentations of decisions (e.g., in court opinions). Still, a Legal Realist ‘Effectiveness’ view can be squared with Legal Positivism’s Rule(s) of Recognition hypothesis if the former is understood to just be a claim about what is ‘most important’ in and about law, and not about what renders a norm legally valid or invalid. Cf Llewellyn, “The Next Step”, supra note 3 at 438 & n 7.
Regarding the conduct/decision rule distinction, Llewellyn might want to claim that working rules are merely rules for official decision, not ones for general conduct (See supra note 74). However, Schauer and others could challenge that characterization on at least two grounds. First, it is precisely these crypto rules “for decision” which Holmes’ bad man wants to know ex ante in order to prudently plan his actions, i.e., to avoid losing in court or on appeal downstream if sued or charged with a crime (See Oliver Wendell Holmes, Jr, “The Path of the Law” (1897) 10:8 Harv L Rev 457 at 457, 459). Second, and relatedly, it precisely for these sorts of reasons, coupled with that about law needing to ‘cog’ into state institutional practices in order to count as real, and (so) for believing that law is best measured in terms of its ‘effects,’ that Llewellyn himself claimed that both the notion of ‘primary’ rights, and the substantive/adjective law distinction, are illusory, as it were. See e.g. Llewellyn, “The Next Step”, supra note 3 at 437-38, 442-43; Llewellyn, The Bramble Bush, supra note 3 at 83-86; infra note 148. (See infra note 147 on primary rights). Cf Schauer, “Legal Reality”, supra note 4 at 116 (“locating legal reality in the choices that judges and other legal actors make…”). Hence, the Realists undercut the conduct rule/decision rule distinction, as it were.
117. If these are not rules, then perhaps another of the Realists’ alternative drivers could explain what is going on here: either the convergence of book rules with extra-legal factors, or the convergence of the book rules + extra-legal factors + officials’ situation-types. At any rate, any ulterior normative content would also allow for the predictability of applicable decisions.
118. Schauer, “Legal Realism Untamed”, supra note 4 at 751.
119. Ibid at 750-51, 771, 774, 776-77.
120. Ibid at 750-51, 773.
121. Ibid at 751 [emphasis added]. Schauer also states:
[The Realist challenge] is a claim about the impotence of paper rules (and traditional techniques of legal reasoning) in generating legal outcomes. Insofar as the claim is empirically sound, it is thus about all of law, and not just the law to be applied when paper rules are indeterminate. The challenge is now to the very idea of positive or formal law as the source of legal determinacy [i.e., because working rules constitute an additional source], and is thus Realism in its far less interstitial and thus far less tamed dimension. Untamed Realism does not claim that there is no legal determinacy, but instead that legal determinacy is often a product of something other than the conventional legal meaning of official rules.
Ibid at 768-69 [emphasis added].
122. See Llewellyn, “Responding to Pound”, supra note 3 at 1239: any case doubtful enough to make litigation respectable; Karl Llewellyn, “The Theory of Legal Science” (1941) 20:1 NC L Rev 1 at 5, n 6: “in doubtful cases, most of the time”); Llewellyn, The Bramble Bush, supra note 3 at 13: what officials do in disputed cases. See also Llewellyn, Common Law Tradition, supra note 3 at 11-12, 154, 189. Schauer points out that, already in The Bramble Bush, Llewellyn had sensed what today is called the selection effect. See Schauer, “Editor’s Introduction”, supra note 4 at 16. See also Llewellyn, The Bramble Bush, supra note 3 at 58: “You will find one great group of litigated cases which were predestined to be litigated. They bear the same relation as does homicidal mania or sleeping sickness, to our normal life.”
123. See Max Radin, “In Defense of an Unsystematic Science of Law” (1941-1942) 51:8 Yale LJ 1269 at 1271, quoted in Leiter, “American Legal Realism”, supra note 12 at 52.
124. See Schauer, “Legal Realism Untamed”, supra note 4 at 751, 758. See also Leiter, “Theoretical Disagreement”, supra note 42 at 1226-27 on the existence of pervasive agreement about the law throughout the system, which is why litigated cases represent only a tiny minority of legal relationships which have gone awry and so require official dispute resolution processes (and why appealed cases constitute an even smaller fraction). (Compare with Llewellyn, The Bramble Bush, supra note 3 at 90; Cardozo, Judicial Process, supra note 51 at 128-29.) The question then becomes, what best explains the existence of that pervasive agreement?
125. Schauer, “Legal Realism Untamed”, supra note 4 at 768. See also ibid at 751, 771.
126. Ibid at 768.
127. Ibid at 764-66, 779. See also Llewellyn, Common Law Tradition, supra note 3 at 27, n 18 and the text accompanying supra note 15.
128. Schauer, “Legal Realism Untamed”, supra note 4 at 768-69, 773.
129. Ibid at 769 [emphasis in original].
130. Schauer presented the Dislocated Determinacy thesis in 2013. Two years earlier, though, he had claimed that Llewellyn would have thought it mistaken to believe that either paper or working rules really guide decision much, letalone afford determinacy. See Schauer, “Editor’s Introduction”, supra note 4 at 21-22. His view thus seems to have evolved by affording more weight to working rules.
131. The thesis also appears to rely upon the ‘Effectiveness’ thesis. Even so, note the problem of overlap of determinacy of certain book rules and cognate working rules. Both sorts of rules could be ‘effective,’ and not just in terms of one’s guiding public conduct exclusively and the other solely guiding official decision, e.g., if most of the public are familiar with (and accept) the book rule and are ignorant about a cognate working rule’s existence, but the courts utilise the book rule as a rationalization for their decisions in disputes. (See also supra note 116 on the working rule guiding the bad man’s conduct).
132. See Schauer, “Editor’s Introduction”, supra note 4 at 20-21; Schauer, “Legal Realism Untamed”, supra note 4 at 768-69, 773-74.
133. See Schauer, “Legal Realism Untamed”, supra note 4 at 777.
134. See e.g. Schauer, “Editor’s Introduction”, supra note 4 at 12, 19; Schauer, “Legal Realism Untamed”, supra note 4 at 751, 769, 774.
135. See Schauer, “Editor’s Introduction”, supra note 4 at 13; Schauer, “Legal Realism Untamed”, supra note 4 at 751, 774, 779.
136. What Llewellyn’s views would have thought about various kinds of officials (e.g., the police versus judges, and/or just amongst different judges) harbouring rivalrous working rules is less clear.
137. See supra note 48.
138. See Llewellyn, “My Philosophy”, supra note 2 at 189; Llewellyn, Common Law Tradition, supra note 3 at 179; Llewellyn, Theory of Rules, supra note 3 at 78-82.
139. See Llewellyn, Common Law Tradition, supra note 3 at 76.
140. Ibid at 179: “Where the rule rates high in wisdom and is also technically clear and neat, the guidance is indeed so cogent as, in effect, to be almost equivalent to control or dictation; so, also, when the measure is technically well designed and the rule is a legislative product of unmistakable policy and is too fresh off the griddle for modifying circumstance to have supervened.” See also Llewellyn, Theory of Rules, supra note 3 at 78-82.
141. On the differences between (supposed) ‘Grand Style’ and ‘Formal’ styles of official decision-making, see Llewellyn, Common Law Tradition, supra note 3 at 36-41.
142. ‘Fireside equities’ is Llewellyn’s neologism for judges’ sense of justice and equity triggered by the unique facts of the specific case before them. He exhorts appellate court judges not to jump to the fireside equities in the first step in their decision-making process. See Llewellyn, Common Law Tradition, supra note 3 at 121, 245, 268-70, 447; Llewellyn, “Grand Tradition”, supra note 3 at 117, 222-23.
143. It is insufficient to note differences between supposed ‘Grand Style’ and ‘Formal’ styles, because even during (supposedly superior) Grand Style periods, not only are there are judges whose decisions reflect the Formal style (See Llewellyn, Common Law Tradition, supra note 3 at 40-44), but there are also other judges who simply do bad jobs due to: a lack of experience; possessing inferior intellects; and/or their use of inferior/inappropriate decision-making processes. (See e.g. ibid at 121, 157.) Further, even if judges’ responses to ‘fireside equities’ are in part shaped by their guild experience on the bench, their responses are not uniform precisely because of the idiosyncratic factors. (Still, Llewellyn makes clear that the relative regularity of their decisions shows why American appellate court decisions are not and cannot be solely, or even predominantly, influenced frequently by the idiosyncratic factors. Ibid at 121.)
144. See Schauer, “Forward”, supra note 4 at xxiii and the text accompanying supra note 57.
145. Again, Llewellyn claims that a certain rare set of rules can basically control official decision-making. See Llewellyn, Common Law Tradition, supra note 3 at 179; Llewellyn, Theory of Rules, supra note 3 at 78-82. However, his explanation is woefully inadequate, and he does not sufficiently address the potential influence of personal extra-legal factors when those sorts of rules are in play.
146. If so, these other Realists would be unfazed by the identified tension. Whether they nevertheless ought to be will turn in part upon how one understands the relationship between working rules, situation-types, and extra-legal factors.
147. The primary/secondary/tertiary rights distinction, which is commonplace in legal and jurisprudential literature, is this. Primary rights are substantive entitlements, e.g., to engage in free speech, to purchase some land, etc. Secondary (or ‘procedural’) rights do several things. Some authorize their holders to initiate dispute resolution proceedings (litigation, arbitration, administrative proceedings, etc.) when primary rights seem to have been, or are threatened to be, violated. They also authorize right-holders to waive such processes. Others are the rights afforded and utilized within official proceedings, e.g., to file certain motions. Still others are employed outside of institutional settings, e.g., entitlements to undertake self-help remedies. Tertiary rights are the ‘remedial’ entitlements provided in dispute resolution proceedings, e.g., a monetary award. See for example Wesley Newcomb Hohfeld, “The Relations Between Equity and Law” (1913) 11:8 Mich L Rev 537. One might add quaternary rights: the legal mechanisms by which to try to secure a court-ordered remedial entitlement.
148. See Rumble, “A New Look”, supra note 84 at 227-28; David Frydrych, “Hohfeld vs the Legal Realists” (2018) 24:4 Legal Theory 291 at 315-22 on Llewellyn and other Realists’ basically identical views about rights and duties (i.e., of primary rights being somewhat illusory). Again, Llewellyn (nor Schauer) will seemingly not countenance the possibility of primary legal rights and duties (qua products of ‘substantive’ rules exclusively) really being as stated on the books, and officials merely possessing wide discretion concerning those positions’ application and enforcement.
149. See Llewellyn, “The Next Step”, supra note 3 at 444 and the text accompanying supra note 81 (“assumed to describe”).
150. See infra note 157 regarding Llewellyn’s views here. At any rate, if Schauer is correct that unwritten working rules can, alone, account for dislocated determinacy throughout a legal system, then more primary and tertiary legal rights and duties may be determinate and certain than the Realists themselves—including Llewellyn—suggest. Cf Frydrych, “Hohfeld vs the Legal Realists”, supra note 148 at 315-22; Schauer, “The Generality of Rights”, supra note 4.
151. If working rules are defeasible reasons, then it is imperative to learn about what defeats them and how.
152. Again, even if a book rule is perfectly clear, on point, and seemingly determinate, officials might nevertheless prefer their cognate unwritten working rule instead. Schauer, “Legal Realism Untamed”, supra note 4 at 764-66, 779.
153. See e.g. Llewellyn, “Responding to Pound”, supra note 3 at 1237, 1240-41 & n 45; Oliphant, “Stare Decisis: Continued”, supra note 8 at 160 on narrower categories.
154. One might object that this criticism relies on a stronger conception of determinacy than Schauer’s, rendering it inapt by conflating determinacy with strict certainty and rote application. Cannot a rule be determinate even if it is not applied in a strictly mechanical way to control decisions? What makes it problematic to claim that unwritten working rules guide decisions and so generate determinacy, but that cases can nevertheless come out differently due to other factors?
The objection is inapt. Schauer suggests that unwritten working rules present an additional basis for classifying cases as ‘easy’ or ‘hard.’ However, if within the subset of cases wherein such rules are said to apply extra-legal factors can sway the decisions one way or another, then those are not necessarily ‘easy’ cases, because the judges will still be deciding upon other grounds—ulterior even to the unwritten rules. Hence, such rules could not perforce produce dislocated determinacy.
155. See Schauer, “Editor’s Introduction”, supra note 4 at 20 regarding the speeding rule. “[I]t is plausible that a Llewellynesque empirical analysis of the [working] rule that governed the speed of cars… would reveal that the [working] rule had set the speed limit at seventy-four miles per hour.” Note that that appears to be a task for social scientists, not lawyers in their usual roles.
156. For example, “[d]rivers will know that the [working] “speed limit 74” rule gives them chances the paper rule does not.” Schauer, “Legal Realism Untamed”, supra note 4 at 768.
157. Compare Llewellyn, Case Law System, supra note 33 at 82 & n 1 with Llewellyn, The Bramble Bush, supra note 3 at 59 about the extent to which members of the public even know about the relevant legal rules and how they mostly structure their actions in accordance with social norms anyway.
158. See supra notes 116, 131 on effectiveness.
159. Cf Llewellyn, Common Law Tradition, supra note 3 at 157; Llewellyn, “Newer Jurisprudence”, supra note 2 at 135, 159.
160. Llewellyn’s claims in The Common Law Tradition entail that both inexperienced and bad officials either do not see or use their ‘situation-sense,’ or, at least not (as well) as experienced and good judges do. Cf Llewellyn, Common Law Tradition, supra note 3 at 244, 264 (on judges lacking the requisite background in a given area of law and so being more easily led astray by counsel’s arguments). Similarly, do bad and/or inexperienced judges decide cases by following the ‘paper’ rules, or something else, rather than being guided by the unwritten working rules? Alternatively, might they harbour different or flawed understandings of the unwritten working rules?
161. For examples, see Schauer, “Legal Realism Untamed”, supra note 4 at 769.
162. See Llewellyn, “Newer Jurisprudence”, supra note 2 at 139-40. Cf Llewellyn, Common Law Tradition, supra note 3 at 24.
163. A fortiori if the unwritten working rules (the judges’, the police’s, or both) are themselves under-determinate.
164. Llewellyn, Theory of Rules, supra note 3 at 48 [emphasis added].
165. Llewellyn, “The Next Step”, supra note 3 at 444 [bold emphasis added]. He also notes: “Rules and principles are part of what produces decision, says [Jerome] Frank. There is more, much more. What more? How much more? How can we bring the “more” under more rational control? Frank did not know, for sure. Neither do you. But we need to know.” Llewellyn, “Newer Jurisprudence”, supra note 2 at 150-51.
166. Llewellyn, Theory of Rules, supra note 3 at 42 [bold emphasis added].
167. Schauer, “Legal Realism Untamed”, supra note 4 at 776-77 [emphasis added]. See also ibid at 773-74.
168. Llewellyn, “Responding to Pound”, supra note 3 at 1237.
169. See e.g. Schauer, “Legal Realism Untamed”, supra note 4 at 751, 754, 769. But cf Schauer, “Legal Reality”, supra note 4 at 118-20.
170. Even in the passage quoted at supra note 165, Llewellyn presumes: the rarity of ‘accepted’ rules being the heavily operative influence in decision; different rules have dissimilar effects on the governing and the governed; etc. This is typical throughout his corpus: caveats advocating moderation and caution are undermined and belied by his insistence of the alternative candidate drivers’ pervasiveness and influence.
171. See Llewellyn, Common Law Tradition, supra note 3 at 25, n 16, 45, discussing Cardozo, Growth of the Law, supra note 51 at 60.
172. If they do differ (mostly or completely) after all, then the Situation-Type hypothesis may be more cogent than the Working Rules one if, and to the extent that, it does not concern rules (i.e., internalized normative prescriptions) per se—at least not ones embedded into the type, if ever they are.
173. Note that this is not the same thing as governments possessing secret laws per se; for secret laws may still be ‘on the books,’ even if the public lacks legal access to the sources. Cf Mikolaj Barczentewicz, “The Illuminati Problem and Rules of Recognition” (2018) 38:3 Oxford J Leg Stud 500.
174. See Schauer, “Legal Realism Untamed”, supra note 4 at 766-68, 776.
175. Cf Llewellyn, Common Law Tradition, supra note 3 at 24.
176. Cf Llewellyn, Common Law Tradition, supra note 3 at 10: there is a greater opportunity for idiosyncratic factors to influence trial court decisions than appellate court ones due to the lack of a group decision in trial courts.
177. See Schauer, “Legal Realism Untamed”, supra note 4 at 769. See also Schauer, “Editor’s Introduction”, supra note 4 at 19 & n 48.
178. However, this question also bears implications for A SITUATION-TYPE, i.e., the extent to which it is worthwhile to claim that officials possess an ulterior category-plus-norm (or a norm about adopting or utilizing certain social norms), regardless of whether it is related to A WORKING RULE, or is instead a wholly distinct concept.
179. See Llewellyn, Common Law Tradition, supra note 3 at 215-16.
180. See Llewellyn, “The Next Step”, supra note 3 at 439 & n 9, 444, 447-50.
181. See ibid at 439, n 8-9, 449, 450.
182. Llewellyn, “The Next Step”, supra note 3 at 439, n 9.
183. See Llewellyn, “The Next Step”, supra note 3 at 450; Llewellyn, “Responding to Pound”, supra note 3 at 1237. Cf Llewellyn, Common Law Tradition, supra note 3 at 27, 154-55.
184. Llewellyn nevertheless also notes that lawyers’ arguments framed in the paper rules’ language, howsoever slyly offered with an ulterior agenda, can influence officials’ decisions. See Llewellyn, “The Next Step”, supra note 3 at 451.
185. Ibid at 439, n 9.
186. Cf Llewellyn, Common Law Tradition, supra note 3 on ‘singing’ rules.
187. Ibid ; Llewellyn, “Effect Upon Legal Institutions”, supra note 20 at 671, n 20.
188. See Llewellyn, “The Next Step”, supra note 3 at 439, n 9; Llewellyn, “Effect Upon Legal Institutions”, supra note 20 at 671, n 20.
189. See Llewellyn, “The Next Step”, supra note 3 at 448.
190. See Section 3(A) above.
191. Llewellyn, Common Law Tradition, supra note 3 at 60 [emphasis added].
192. See Llewellyn, Common Law Tradition, supra note 3 at 44, 60, 121-28, 206-08; Llewellyn, “Grand Tradition”, supra note 3 at 218.
193. See e.g. Llewellyn, Common Law Tradition, supra note 3. See also Oliphant, “A Return to Stare Decisis”, supra note 8 at 75; Radin, supra note 87; Twining, supra note 79 at 216-27; Leiter, “Legal Doctrine”, supra note 22 at 1977; Postema, supra note 75 at 128-29.
194. See e.g. Llewellyn, Common Law Tradition, supra note 3 at 44, 200.
195. See ibid at 60, 121-22; Llewellyn, Case Law System, supra note 33 at 79. See also Llewellyn, Common Law Tradition, supra note 3 at 201 concerning Llewellyn’s related (and overlapping) concept, HORSE SENSE: the sense of the skilled expert).
196. See e.g. Llewellyn, Common Law Tradition, supra note 3 at 5.
197. See e.g. ibid at 5, 44, 200. Other Realists (save at least for Corbin, if counted as a movement member) might disagree with the later Llewellyn (of the Common Law Tradition) to the extent that he suggests that appellate court judges refashion book rules so that they, alone, are, or can be, dispositive for future decisions.