Professional Documents
Culture Documents
Foreword The Constraint of Legal Doctrine
Foreword The Constraint of Legal Doctrine
2015
Recommended Citation
Balganesh, Shyamkrishna, "Foreword: The Constraint of Legal Doctrine" (2015). Faculty Scholarship. Paper 1578.
http://scholarship.law.upenn.edu/faculty_scholarship/1578
This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty
Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact
[email protected].
UNIVERSITY of PENNSYLVANIA
LAW REVIEW
Founded 1852
Formerly
AMERICAN LAW REGISTER
FOREWORD
SHYAMKRISHNA BALGANESH†
(1843)
1844 University of Pennsylvania Law Review [Vol. 163: 1843
1 See Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L.
REV. 267, 274 (1997) (“Realism is omnipresent in American law schools and legal culture . . . .”).
2 Michael Steven Green, Legal Realism as Theory of Law, 46 WM. & MARY L. REV. 1915, 1917
(2005) (emphasis omitted); Leiter, supra note 1, at 267-68.
3 Frederick Schauer, Legal Realism Untamed, 91 TEX. L. REV. 749, 750 n.2 (2013).
4 Leiter, supra note 1, at 275.
5 Schauer, supra note 3, at 753.
6 William N. Eskridge, Jr. & Philip P. Frickey, Legislation Scholarship and Pedagogy in the Post-
Legal Process Era, 48 U. PITT. L. REV. 691, 694 (1987) (noting the “corrosive skepticism about
legal rules and doctrine preached . . . by many of the ‘legal realists’”).
7 For a sampling of the literature, see JEROME FRANK, LAW AND THE MODERN MIND
(1935); LAURA KALMAN, LEGAL REALISM AT YALE, 1927–1967 (1986); BRIAN LEITER,
NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN
LEGAL PHILOSOPHY (2007); JULIUS PAUL & LEON GREEN, THE LEGAL REALISM OF
JEROME N. FRANK: A STUDY OF FACT-SKEPTICISM AND THE JUDICIAL PROCESS (1959);
WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (2d ed. 2014); L. L.
Fuller, American Legal Realism, 82 U. PA. L. REV. 429 (1934); Grant Gilmore, Legal Realism: Its
Cause and Cure, 70 YALE L.J. 1037 (1961); Anthony Kronman, Jurisprudential Responses to Legal
Realism, 73 CORNELL L. REV. 335 (1988); Myres S. McDougal, Law School of the Future: From
Legal Realism to Policy Science in the World Community, 56 YALE L.J. 1345 (1947); David B. Wilkins,
Legal Realism for Lawyers, 104 HARV. L. REV. 468 (1990); Calvin Woodard, The Limits of Legal
Realism: An Historical Perspective, 54 VA. L. REV. 689 (1968); Daniel A. Farber, Toward a New
2015] The Constraint of Legal Doctrine 1845
thinking, legal academics continue to debate the extent to which the Realists
were saying something altogether new, and indeed whether they mischarac-
terized their predecessors.8 Despite the voluminous body of literature on
Legal Realism, hardly anyone has sought to examine systematically the
actual effect of its central premise on the style, form, and substance of legal
reasoning undertaken by courts in different doctrinal areas. If legal doctrine
does not constrain judicial reasoning (or at best does so minimally), as the
Legal Realists claimed, and this reality is widely accepted by all participants
in the judicial system, we might expect to see a difference in the way courts
approach their task of deciding cases and providing reasons for their
decisions. Yet, the fact remains that we simply do not.
In a variety of substantive areas, judicial opinions continue to speak the
language of legal doctrine, and legal doctrine remains the “currency”9 of
legal analysis. Judges—at least on the face of things—appear as constrained
or unconstrained by legal doctrine today as they appeared to be prior to the
influence of Legal Realism. Consider a pair of copyright cases as an
example. In 1908, the Supreme Court decided White-Smith Music Publishing
Co. v. Apollo Co., and held that a manufacturer of perforated piano rolls
did not commit copyright infringement, since the rolls were not “copies”
for the purposes of copyright law.10 In arriving at its conclusion, the Court
looked to prior nonbinding case law, legislative intent, its own construction
of the statute, and the common understanding of the term “copy.”11 The
only express suggestion of constraint in the Court’s opinion is its observa-
tion—in dicta—that if the prior case law had been of a “binding character”
it would have “preclud[ed] further consideration of the question.”12 Now,
contrast this with a case decided by the Court in 2014, American Broadcasting
Co. v. Aereo, Inc. 13 The question before the Court was whether a service
that re-transmitted free broadcasting content to subscribers over the
Legal Realism, 68 U. CHI. L. REV. 279 (2001) (book review); Joseph William Singer, Legal Realism
Now, 76 CALIF. L. REV. 465 (1988) (book review).
8 See, e.g., BRIAN Z. TAMANAHA, BEYOND THE FORMALIST –REALIST DIVIDE: THE
ROLE OF POLITICS IN JUDGING (2009); Brian Leiter, Legal Formalism and Legal Realism: What is
the Issue?, 16 LEGAL THEORY 111 (2010); Alfred L. Brophy, Did Formalism Never Exist?, 92 TEX.
L. REV. 383 (2013) (book review); Edward Rubin, The Real Formalists, the Real Realists, and What
They Tell Us About Judicial Decision Making and Legal Education, 109 MICH. L. REV. 863 (2011)
(book review).
9 Emerson H. Tiller & Frank B. Cross, What is Legal Doctrine?, 100 N W. U. L. REV. 517, 517
(2006).
10 209 U.S. 1, 18 (1908).
11 Id. at 12-17.
12 Id. at 12.
13 134 S. Ct. 2498 (2014).
1846 University of Pennsylvania Law Review [Vol. 163: 1843
14 Id. at 2504.
15 Id. at 2504-10.
16 The areas chosen for presentation at the Symposium were tort law, contract law, property
law, criminal law, copyright law, the law of corporations, the law of evidence, family law,
constitutional law, administrative law, conflict of laws, and the role of legal categories in the law.
2015] The Constraint of Legal Doctrine 1847
from the Symposium contributions. Part III will then conclude by remind-
ing readers of a now-forgotten, but nonetheless important, piece of scholar-
ship published in this journal that addressed the very question of this
Symposium eight decades ago, challenging the extreme version of the Legal
Realist claim.
A. Mechanistic Constraint
The first, and perhaps most extreme, form of constraint that legal
reasoning by judges is sometimes accused of, entails the internalization of
the belief that legal rules play a deductive role in adjudication, such that any
given legal decision is fully determinable by an applicable rule. In this view,
the direct application of a rule to the facts of a dispute is seen to yield a
rationally determinate answer.17 Legal reasoning is thus “constrained” by
doctrine insofar as that doctrine dictates not just its own applicability, but
also individual outcomes upon its actual application. This form of constraint
earned the name “mechanical jurisprudence,” and was used by the Legal
Realists as a pejorative to describe classical legal thinking, that is, Legal
Formalism.18
Few, if any, would suggest (or believe) that judges and other actors
today feel constrained by legal doctrine in this extreme sense—that is, as
B. Structural Constraint
A second way in which legal doctrine might constrain decisionmakers is
by structuring the question in a way that renders certain aspects of the
dispute/controversy at hand more or less salient than others, thereby
emphasizing particular elements of the dispute during its resolution.
Psychologists refer to this in other contexts as the “framing effect” that
influences certain kinds of decisions. 20 One might thus consider legal
doctrine to do the same, i.e., constrain the decision by framing the inquiry
and analysis, in situations where it applies. Doctrine in this understanding
constrains by directing attention towards certain aspects of the factual
record, and rendering certain other elements of the dispute altogether
irrelevant or secondary to the analysis. As one early scholar, identifying this
framing function of doctrine for judges, put it, “[doctrine] supplies a
structure for his thought to follow, [and] draws a sketch map for him of the
way into and through a case.”21
On occasion we see courts recognizing this constraint of framing, and
consciously rejecting particular doctrinal categories during their analysis
solely to avoid being limited by such a choice. Consider the New Jersey
Supreme Court’s refusal in the famed case of State v. Shack to analyze the
problem before it using landlord–tenant law. 22 The court categorically
observed that there was “no profit in trying to decide upon a conventional
category and then forcing the present subject into it” since such an
“approach would be artificial and distorting.”23 In this observation the court
can be seen to suggest that a particular doctrinal category might constrain
19 John Dickinson, Legal Rules: Their Function in the Process of Decision, 79 U. PA. L. REV. 833,
833 (1931) [hereinafter Dickinson, Legal Rules]. Dickinson traced this conception back to
Montesquieu. Id.
20 See, e.g. Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of
Choice, 211 SCI. 453 (1981).
21 Dickinson, Legal Rules, supra note 19, at 849.
22 277 A.2d 369, 374 (N.J. 1971).
23 Id.
2015] The Constraint of Legal Doctrine 1849
24 For an excellent account of such conventions, see Richard A. Posner, Judges’ Writing Styles
(And Do They Matter?), 62 U. CHI. L. REV. 1421 (1995). Posner characterizes the account of
judicial opinion writing that exhibits the constraint described above as the “pure” style of opinion
writing. Id. at 1429. He notes that in this style, opinions “conform[] closely to professional
expectations about the structure and style of a judicial opinion” and that the style uses “technical
legal terms without translation into everyday English, quotes heavily from previous judicial
opinions, [and] complies scrupulously with whatever are the current conventions of citation
form.” Id.
25 For a useful exploration of whether lawyers think and reason differently from others, see
Nathan Isaacs, How Lawyers Think, 23 COLUM. L. REV. 555 (1923).
26 See Posner, supra note 24, at 1431 (noting how adherence to the conventions of “pure”
opinion writing plays a persuasive role in legitimizing the decision and conforms to audience
expectation).
1850 University of Pennsylvania Law Review [Vol. 163: 1843
* * *
27 See FELIX S. C OHEN, ETHICAL SYSTEMS AND LEGAL IDEALS 237 (1959); FRANK,
supra, note 7, at 130 (“[O]ne of their chief uses is to enable the judges to give formal justifica-
tions . . . of the conclusions at which they otherwise arrive.”).
28 COHEN, supra note 27, at 238; FRANK, supra note 7, at 130.
29 COHEN, supra note 27, at 237.
2015] The Constraint of Legal Doctrine 1851
30 Brian Leiter, Legal Realism and Legal Doctrine, 163 U. PA. L. REV. 1975, 1975 (2015).
31 Id. at 1983-84.
32 Id.
33 Hanoch Dagan, Doctrinal Categories, Legal Realism, and the Rule of Law, 163 U. PA. L. REV.
1889, 1890 (2015).
34 Id.
1852 University of Pennsylvania Law Review [Vol. 163: 1843
35 Id.
36 Leiter, supra note 30, at 1983-84.
37 Celia Wasserstein Fassberg, Realism and Revolution in Conflict of Laws: In with a Bang and
Out with a Whimper, 163 U. PA. L. REV. 1919, 1941 (2015).
38 Id. at 1923-32.
39 Id. at 1938-40.
40 Id. at 1941-44.
41 Henry E. Smith, The Persistence of System in Property Law, 163 U. PA. L. REV. 2055, 2057
(2015).
2015] The Constraint of Legal Doctrine 1853
the system of property law remains reliant on the basic architecture of its
doctrinal devices, with the influence of Legal Realism having been felt only
on the very peripheries of the system.42
Ben Zipursky examines the role of doctrine in tort law by focusing on
the legal concept of “reasonableness” and its use in negligence cases.43
According to Zipursky, the concept of reasonableness has a definitive
meaning within tort law, one that economic accounts (or indeed the Hand
Formula) fail to capture. It involves focusing factfinders’ attention on a
particular kind of person for their analysis, which derives from the reality
that negligence law is built on the existence of duties of care that members
of society owe each other in their everyday life.44 The doctrinal concept, he
argues, captures a basic normative intuition about the role of tort law and its
overall structure. In Zipursky’s account, negligence law can fruitfully
continue to rely on the concept of reasonableness for both normative and
structural reasons, without at the same time requiring an acceptance of its
mechanistic role in legal reasoning. 45 Reasonableness remains a robust
doctrinal part of tort law, with a definitive meaning.
In her discussion of contract law, Tess Wilkinson-Ryan captures a differ-
ent dimension of the law’s reliance on doctrine, namely, its influence on
people’s intuitions about what contract law requires of them. 46 While
recognizing that contract law continues to rely on a host of formal rules
(e.g., consideration) in different contexts, she argues that consumers
extrapolate from these legal rules to draw conclusions about the working of
contract law in contexts where the law’s own provision of flexibility and
protection might enable them to do otherwise.47 She thus identifies an
additional constraining effect of legal doctrine, namely, its role in shaping
(mis)perceptions about the obligatory requirements of the law.48
A natural and well-known corollary to the question of doctrinal con-
straint is what some scholars refer to as the “indeterminacy thesis,” the
belief that legal doctrine cannot provide determinate outcomes in individual
cases, that additional extra-legal considerations are required, and that legal
doctrine is little more than window dressing. 49 Leo Katz examines the
applicability of the indeterminacy thesis within criminal law, offering
nine different perspectives from which one might resolve, attenuate, or
unwittingly exacerbate the problem.50 In acknowledging that it remains a
“really hard problem,” Katz seemingly admits that legal doctrine does
not operate as a complete constraint.51 All the same, by suggesting ways
in which the problems of indeterminacy can be minimized, he seems to
suggest that doctrine does indeed operate as a constraint in very many
situations, even if it doesn’t do so perfectly.
When we move away from basic areas of the law to the more specialized
and statute-laden ones, the issue of doctrinal constraint becomes more
complex. Here, unlike in other domains, questions of institutional role,
separation of powers, and inter-governmental (i.e., federal–state, and inter-
branch) coordination become intertwined with doctrinal considerations
within the domain of legal reasoning. Yet, here too we see doctrine
constraining both the form and content of judicial reasoning.
Melissa Murray examines this question within family law by looking at
recent judicial interpretations of the Uniform Parentage Act (UPA) within
the state of California.52 Analyzing how courts have attempted to rely on
the blackletter rules of the Act when presented with novel family arrangements
and disputes, Murray concludes that doctrine certainly matters in this
domain, and does indeed operate as a constraint.53 Yet, she argues that legal
doctrine encapsulates more than just rules, cases, and regulation, but instead
extends to certain ideals and principles that inform the interpretation and
application of the rules and regulations. 54 In this regard, she echoes
arguments famously made by Ronald Dworkin in his account of how
“principles” inform the application of legal doctrine in hard cases, and thus
enable courts to work within the parameters of the law in their
decisionmaking.55
Gideon Parchomovsky and I show how the Supreme Court creates law
within the interstices of the federal copyright statute by identifying obvious
49 For an overview of the indeterminacy problem in legal analysis, see generally Lawrence B.
Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L. REV. 462 (1987).
50 Leo Katz, Nine Takes on Indeterminacy, with Special Emphasis on the Criminal Law, 163 U.
PA. L. REV. 1945, 1951 (2015).
51 Id. at 1973.
52 Melissa Murray, Family Law’s Doctrines, 163 U. PA. L. REV. 1985,1989 (2015).
53 Id. at 2012-17.
54 Id. at 2017-18.
55 RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 38 (1977).
2015] The Constraint of Legal Doctrine 1855
56 Shyamkrishna Balganesh & Gideon Parchomovsky, Equity’s Unstated Domain: The Role of
Equity in Shaping Copyright Law, 163 U. PA. L. REV. 1859, 1865, 1871-72 (2015).
57 Id. at 1887.
58 Id. at 1888.
59 Edward B. Rock, Corporate Law Doctrine and the Legacy of American Legal Realism, 163 U.
PA. L. REV. 2019, 2029 (2015).
60 Id. at 2029-48.
61 Id. at 2048-49.
1856 University of Pennsylvania Law Review [Vol. 163: 1843
of legal doctrine, which has enabled lawyers and judges to focus more
directly on the normative considerations at stake.62
Alex Stein’s contribution to the Symposium looks at the role of doctrine
within the law of evidence, an area that is at once both trans-substantive and
of relevance to a variety of public law and private law areas.63 Critiquing
versions of “antidoctrinalism” that are seen in the work of some scholars,
Stein argues that evidence law is characterized by several “organizing principles”
that draw on, and integrate, ideas from economics, morality and epistemology.64
These organizing principles are in turn a central component of evidence law
doctrine that courts and litigants apply to individual cases. Stein shows that
evidence law (and jurisprudence) is incapable of being comprehended
without appreciating the crucial role of these organizing principles in
balancing the area’s incommensurable normative considerations, in turn
reifying the centrality of legal doctrine to the area and the fundamentally
“legal” nature of evidence discourse.65
* * *
What then do we take away from the reality that (a) doctrine remains an
important component of legal reasoning in just about every area of the law,
and (b) that its role and importance vary from one area to another? I think
there are three tentative analytical lessons that may be drawn from these
contributions.
First, doctrine performs a variety of different roles within the domain of
legal reasoning, ranging from providing actors with an independent normative
basis for their decisionmaking, to allowing different institutional actors
within a system to maintain their political legitimacy vis-à-vis each other,
and in the minds of the lay public. Each of these roles “constrains” reasoning
in important, but distinct ways. The constraint of doctrine is thus necessarily
pluralist.
Second, the sources of legal doctrine—that collectively constrain legal
reasoning—vary from one substantive area to another, and from one
institutional actor to another. Acknowledging the constraining effect of
doctrine has thus meant that courts and litigants today seek to expand the
62 Id. at 2052-53.
63 Alex Stein, The New Doctrinalism: Implications for Evidence Theory, 163 U. PA. L. REV.
2085, 2086 (2015).
64 Id. at 2088-96.
65 Id. at 2095.
2015] The Constraint of Legal Doctrine 1857
source and content of legal doctrine as part of their reasoning, rather than
treat the new considerations that demand their attention as being purely
“extra-doctrinal.” The most common technique in this regard appears to be
a ready recourse to background “principles” that inform and animate the
textual or formal content of rules and regulations.
Third, while Legal Realism may not have eliminated all reliance on
doctrine (and it is of course questionable whether this was ever its motivation),
it has nonetheless had a discernible impact on our understanding of doctrine
in the U.S. legal system. Doctrine is today seen as important, not for its
own sake, but because of its connection to normative criteria that are
deemed independently worthwhile for the law to adopt. In this sense, Legal
Realism has succeeded in moving the inquiry from one rooted in the
“science of law” to one striving to develop “science about law,” as Thurman
Arnold famously put it.66 Legal doctrine is today seen as rooted in ideals
from economics, moral philosophy, sociology, behavioral psychology, and
political science in a way that has produced an equilibrium where doctrinal
and non-doctrinal considerations are treated as equally important for a
fuller understanding of the law. It is perhaps this equilibrium that we may
appropriately identify as the “New Doctrinalism” of the American legal
thinking.
66 See Thurman W. Arnold, Institute Priests and Yale Observers—A Reply to Dean Goodrich, 84
U. PA. L. REV. 811, 813 (1936).
67 See, e.g., id.; Fuller, supra note 7, at 429; Herbert F. Goodrich, Institute Bards and Yale
Reviewers, 84 U. PA. L. REV. 449 (1936).
68 Dickinson, Legal Rules, supra note 19.
69 See, e.g., John Dickinson, The Law Behind Law, 29 COLUM. L. REV. 113 (1929); John
Dickinson, Legal Rules: Their Application and Elaboration, 79 U. PA. L. REV. 1052 (1931); John
Dickinson, The Problem of the Unprovided Case, 81 U. PA. L. REV. 115 (1932).
70 Dickinson, Legal Rules, supra note 19.
1858 University of Pennsylvania Law Review [Vol. 163: 1843
71 Id. at 835-36.
72 Id. at 838-66.
73 See supra Part I.
74 Dickinson, Legal Rules, supra note 19, at 849.
75 Id. at 868.
76 George L. Haskins, John Dickinson: 1894–1952, 101 U. PA. L. REV. 1 (1952).
77 Dickinson, Legal Rules, supra note 19, at 868.