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The Neo-Behavioral Approach to the Judicial Process: A Critique

Published online by Cambridge University Press:  01 August 2014

Wallace Mendelson
Wallace Mendelson*
Affiliation:
The University of Texas
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Extract

A generation ago “legal realists” led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.

Llewellyn, too, changed his mind. In 1934 he had said, “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” Seventeen years later he confessed that his earlier behavioral descriptions of law contained “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.”

In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: “The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”

Type
Research Article
Information
American Political Science Review , Volume 57 , Issue 3 , September 1963 , pp. 593 - 603
Copyright
Copyright © American Political Science Association 1963

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References

1 See Frank, , Law and the Modern Mind (1930)Google Scholar.

2 See, for example, Roth v. United States, 237 F. 2d 796, 806 (1956).

3 Llewellyn, , “The Constitution as an Institution,” Columbia Law Review, Vol. 34 (1934), pp. 1, 7CrossRefGoogle Scholar.

4 Llewellyn, , The Bramble Bush (1951 ed.), p. 9Google Scholar. See also Llewellyn, , “Law and the Social Sciences, Especially Sociology,” Harvard Law Review, Vol. 62 (1949), pp. 1286, 1291CrossRefGoogle Scholar.

5 “But realism, despite its liberating virtues, is not a sustaining food for a stable civilization.” Arnold, Thurman in “Jerome Frank,” University of Chicago Law Review, Vol. 24 (1957), pp. 633, 635Google Scholar.

6 Holmes, , The Common Law, (1881) p. 36Google Scholar

7 Journal of Public Law, Vol. 6 (1958), p. 279Google Scholar.

8 Table xvi, p. 131 (1948).

9 Craig V. Harney, 331 U. S. 367 (1947); Times-Mirror v. Superior Court of California, 314 U.S. 252 (1941); Nye v. United States, 313 U. S. 33 (1941).

10 Mabee v. White Plains Pub. Co., 327 U.S. 178 (1946); Oklahoma Press v. Walling, 327 U.S. 186 (1946); Associated Press v. United States, 326 U.S. 1 (1945).

11 See footnote 10, above.

12 Associated Press v. United States, 326 U.S. 1, 20 (1945).

13 See “Justice Black and First Amendment ‘Absolutes’: A Public Interview,” N.Y.U. Law Rev., Vol. 37 (1962), pp. 549, 557Google Scholar.

14 Voyages and Cargoes (1947), p. 163Google Scholar. Quoted in Rogers, L., Book Review, Columbia Law Rev., Vol. 61 (1961), pp. 308, 310Google Scholar.

15 See footnote 9, above.

16 See footnote 10, above.

17 Op. cit., footnote 14, above, at p. 163.

18 374 U.S. 357 (1927).

19 Kurland, , Book Review, Yale Law Journal, Vol. 58 (1948), pp. 206, 208Google Scholar.

20 This problem is particularly striking in the dissenting position in Terminiello v. Chicago, 337 U.S. 1 (1949); Girouard v. United States, 328 U.S. 61 (1946); and West Virginia School Dist. v. Barnette, 319 U.S. 624 (1943).

21 See Pritchett, , Civil Liberties and the Vinson Court (1954), p. 249Google Scholar.

22 Times-Mirror v. Superior Court of California, 314 U.S. 252 (1941); Nye v. United States, 313 U.S. 33 (1941).

23 United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938).

24 See footnote 8, above; but compare Stone's “rating” in Mason, , Harlan Fiske Stone: Pillar of the Law, chs. 31 and 32 (1956)Google Scholar, and Wechsler, , “Stone and the Constitution,” Columbia Law Rev., Vol. 46 (1946), p. 764CrossRefGoogle Scholar.

25 The Western Political Quarterly, Vol. 13 (1960), p. 288CrossRefGoogle Scholar.

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27 “In this [i.e., Ulmer's] paper a civil liberties case is one involving a claimed right of the type covered by the Bill of Rights and the Civil War Amendments. … On this definition it makes no difference whether the claim calls for constitutional or statutory interpretation as long as the right involved is primarily a personal rather than a property right.” Id., 288.

28 See Thayer, , “The Origin and Scope of the American Doctrine of Constitutional Law,” Harvard Law Rev., Vol. 7 (1893), p. 129CrossRefGoogle Scholar.

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30 Strictly speaking, Ulmer does not present these figures as absolute, but merely as relative to the extremist position of Douglas. Yet, the figures are, in effect, absolute, since Douglas's position is held to be “consistent and equivalent in both terms,” and is all but completely libertarian, Loc. cit., p. 311.

31 Id., pp. 288–89.

32 Id., p. 288. In a more perceptive scale analysis Joel Grossman shows the importance of elements that Ulmer ignores. A difficulty in Grossman's effort, I think, is that his DJR factor is too vague in expression and too narrow in application. See Grossman, , “Role Playing and the Analysis of Judicial Behavior: The Case of Mr. Justice Frankfurter,” Journal of Public Law, Vol. 11 (1962), p. 285Google Scholar.

33 Howe, , “Justice in a Democracy,” The Atlantic, Vol. 185 (1949), p. 34Google Scholar.

34 Ulmer, loc. cit., p. 295.

35 Id., p. 296.

36 See Spaeth, , “Judicial Power as a Variable Motivating Supreme Court Behavior,” Midwest Journal of Political Science, Vol. 6 (1962), pp. 54, 55, 82CrossRefGoogle Scholar.

37 United States v. Hutcheson, 312 U.S. 219 (1941).

38 Gemsco v. Walling, 324 U.S. 244 (1945).

39 Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).

40 International Ass'n. of Machinists v. Street, 367 U.S. 740, 797 (1961).

40a In a later article, Spaeth finds that Frankfurter has a markedly anti-union attitude. This conclusion is based on scale analysis of non-unanimous decisions during the 1953–1959 Terms. When all relevant (per Spaeth) decisions—unanimous and divided—are considered, it appears that Frankfurter voted “anti-union” in at most 53 per cent of the cases. This figure, however, is inaccurately high because Spaeth counts as “anti-union” the “occasional” vote (unidentified) which is in fact “pro-union” but less “pro-union” than the majority votes in the same case (p. 293). If bare numbers are to be the test, surely a voting record of 53 per cent or less either way is as close to neutrality (in 85 cases over a seven-year period) as one could hope for in this imperfect world. Surely such a record is not in itself significantly “pro” or “anti” except perhaps in relation to Douglas's more than 90 per cent “pro-union” stand. See Spaeth, , “An Analysis of Judicial Attitudes in the Labor Relations Decisions of the Warren Court,” Journal of Politics, Vol. 25 (1963), p. 290CrossRefGoogle Scholar.

41 “Policy Without Law: An Extension of the Certiorari Game,” Stanford Law Rev., Vol. 14 (1962), p. 284CrossRefGoogle Scholar.

42 Id., p. 288. A more technical statement of the hypothesis will be found at id., p. 294.

43 Id., p. 294 et seq.

44 Of course, as Schubert shows, the bloc grants certiorari only to workmen, but in its view this is a matter of constitutional necessity, not of strategic choice. See, for example, Wilkerson v. Mc-Carthy, 336 U.S. 53, 62 (1949), but compare Rogers v. Missouri Pacific R.R., 352 U.S. 500, 509–10 (1957). For the Constitution gives the right to trial by jury, and in these cases only workmen are in a position to claim denial of it (as the result of a directed verdict or judgment not-withstanding verdict). Railroads cannot lose these cases and thus need certiorari except by jury findings. So, unlike workers, they are in no position to claim denial of the basic right. It is not clear to me whether Schubert is unaware of this distinction or merely finds it unimportant.

Of course, it is possible for the Court to grant certiorari to a railroad in one of these FELA evidentiary cases on other than constitutional grounds, but this is highly unlikely in both doctrine and practice. Indeed, Schubert's study indicates that in 24 years only two such petitions were granted, and one of them was dismissed. See New York, N. H. & H.R.R.v. Henagan, 364 U.S. 441 (1960), and McCarthy v. Bruner, 323 U.S. 673 (1944). In both cases, Schubert says, “the most reasonable assumption is that [the certiorari bloc] did not support the grant. …” Loc. cit., 321–23.

45 Mr. Justice Frankfurter called attention to the phenomenon at least as early as Wilkerson v. McCarthy, 336 U.S. 53, 67 (1949). Since then numerous studies have anticipated Schubert's conclusions.

46 Diesing, P., Reason in Society (1962)Google Scholar, which suggests that there are at least five types of rationality in social action, and that the prevailing conception (the efficient achievement of predetermined ends) is unrealistically narrow.

47 The Roosevelt Court (1948), p. 191Google Scholar. The quotation above relates to decisions during the 1941–46 Terms.

48 Subject to what may remain of substantive due process.

49 Op. cit., p. 190.

50 Id., p. 193.

51 New York v. United States, 331 U.S. 284 (1947); SEC v. Chenery, 318 U.S. 80 (1943), and 332 U.S. 194 (1947).

52 See Frankfurter's opinion in Driscoll v. Edison Light and Power Co., 307 U.S. 104, 122 (1939). This is the source of the language which Pritchett quotes at note 50, above.

53 Op. cit., p. 194.

54 330 U.S. 585 (1947).

55 See note 51, above.

56 Nathanson, , “Mr. Justice Frankfurter and Administrative Law,” Yale Law Journal, Vol. 67 (1957), pp. 240, 260CrossRefGoogle Scholar.

57 “Predicting Supreme Court Decisions Mathematically: A Quantitative Analysis of the ‘Right to Counsel’ Cases,“ this Review, Vol. 51 (1957), p. 1Google Scholar. Perhaps this should not be classified as a psychometric study.

58 Quoted in Berman, , The Nature and Sources of Law (1958), p. 274Google Scholar.

59 Schubert, , “The Study of Judicial Decision-Making as an Aspect of Political Behavior,” this Review, Vol. 52 (1958), p. 1007Google Scholar.

60 Id., p. 1011.

61 Id., p. 1010.

62 Id., p. 1017.

63 Ibid.

64 See Mendelson, , “Mr. Justice Black and the Rule of Law,” Midwest Journal of Political Science, Vol. 4 (1961), p. 250CrossRefGoogle Scholar.

65 Pound, , An Introduction to the Philosophy of Law (1954 ed.), p. 54Google Scholar.

66 Cardozo, , The Nature of the Judicial Process (1921), p. 141Google Scholar.

67 Llewellyn, , The Common Law Tradition (1960), p. 217Google Scholar. See also Mansfield in Rex v. Wilkes, 4 Burr. 2527, 2539 (K.B. 1770).

68 See Freund, , “Mr. Justice Frankfurter,” Harvard Law Review, Vol. 76 (1962), p. 17Google Scholar.

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