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2015

Foreword: The Constraint of Legal Doctrine

Shyamkrishna Balganesh
University of Pennsylvania Law School, [email protected]

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 UNIVERSITY of PENNSYLVANIA
LAW REVIEW
Founded 1852

Formerly
AMERICAN LAW REGISTER

© 2015 University of Pennsylvania Law Review

VOL. 163 JUNE 2015 NO. 7

FOREWORD

THE CONSTRAINT OF LEGAL DOCTRINE

SHYAMKRISHNA BALGANESH†

INTRODUCTION: THE “MYTH” OF DOCTRINAL CONSTRAINT........ 1844

I. THE MULTIPLE CONSTRAINTS OF LEGAL DOCTRINE .............. 1847
A. Mechanistic Constraint ................................................................1847
B. Structural Constraint .................................................................. 1848
C. Conventionalist Constraint (Versus Rationalization) ...................... 1849
II. THE CONSTRAINT OF LEGAL DOCTRINE IN ............................. 1851
DIFFERENT AREAS OF THE LAW .................................................... 1851
III. JOHN DICKINSON ON THE CONSTRAINT OF LEGAL RULES ...... 1857

† Professor of Law, University of Pennsylvania Law School.

Many thanks to Charlotte Melbinger, Michael McDonald, and the University of Pennsylvania
Law Review for collaborating with the faculty in putting together this Symposium. A special
thanks to my colleague Edward Rock, who sparked our collective interest in the topic, and whose
guidance and advice played a central role in the success of the Symposium. Thanks are also due to
Leo Katz, Ted Ruger, and Tess Wilkinson-Ryan for their help with the organization and planning
of the event, and to Gideon Parchomovsky and Edward Rock for comments.

(1843)
1844 University of Pennsylvania Law Review [Vol. 163: 1843

INTRODUCTION: THE “MYTH” OF DOCTRINAL CONSTRAINT

As the dominant approach to legal analysis in the United States today,
Legal Realism is firmly ensconced in the way scholars discuss and debate
legal issues and problems.1 The phrase “we are all realists now” is treated as
cliché precisely because it is in some ways taken to state an obvious reality
about the mindset of American legal scholars.2 While Legal Realism came
to represent a variety of different views, all of these views embodied a
common theme, namely, the belief that legal doctrine is “more malleable,
less determinate, and less causal of judicial outcomes” than is traditionally
presumed.3 Judges in this view are taken to decide cases based on what they
consider “fair” under the circumstances, “rather than on the basis of the
applicable rules of law.”4 Judicial reasoning, the Realists argued, was rarely
ever the “constrained product of legal doctrine and legal materials alone.”5
A hallmark of Legal Realism was therefore pervasive “skepticism” about the
constraining effect of legal doctrine on judicial opinions and scholarly
critiques of judge-made law.6 The constraint of legal doctrine was thus
believed to be mythical.
In the many decades since its arrival, the scholarly literature examining
the scope, influence, virtues, vices, and varieties of Legal Realism has grown
exponentially.7 Acknowledging the dominance of Legal Realism as a way of

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

Internet had committed copyright infringement by engaging in a “public

performance” for the purposes of copyright law.14 In answering the question
in the affirmative, the Court justified its conclusion entirely by reference to
the legislative history of the statute’s definitions of “public” and “perform”
and its own reconstruction of Congress’s regulatory intent underlying the
statute.15
The similarity in style and reasoning in the two opinions is stark and
real. Both speak the language of formal legal doctrine, both make reference
to precedent (when available), both defer to Congressional “intent” and
purpose, and both rely as best as possible on the text of the statute. One was
crafted in a pre-Realist era and the other well after the dominance of Legal
Realism. Their puzzling parallelism highlights the central questions that
this Symposium set out to answer: Does legal doctrine in fact continue to
“constrain” judicial reasoning, even after almost every participant in the
legal system today has come into contact with the central premise of Legal
Realism (i.e., the supposed myth of doctrinal constraint)? Are there ways of
reconciling courts’ post-Realist use of legal doctrine with the core insights
of Legal Realism? How uniform—across the law—is this apparent continuity
in the use of legal doctrine?
Instead of seeking to answer these questions in the abstract as
philosophical inquiries, the Symposium instead chose to have leading legal
scholars, each from a different substantive area of law, reflect on the role of
legal doctrine in their respective areas of expertise. Our hope was that
having scholars reflect on this issue by reference to their own fields of
expertise would address the question of “doctrinal constraint” in the
American legal system organically and trans-substantively. The areas chosen
were drawn from both federal and state law, statutory and common law, and
represented areas traditionally characterized as public law and private law.16
Some scholars chose to reflect on the question by looking at their field as a
whole, while others reflected on the issue through specific cases, rules, or
problems unique to their particular field.
In what follows, I will begin in Part I by unpacking the various senses in
which doctrine might be seen to “constrain” legal and judicial reasoning, the
central question that unites the Articles that follow. Part II will summarize
some of the key findings on the constraint of legal doctrine that emerge

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.

I. THE MULTIPLE CONSTRAINTS OF LEGAL DOCTRINE

What exactly does it mean for doctrine to “constrain” legal and judicial
reasoning? Depending on how widely or narrowly one understands the
notion of a constraint, the question becomes either profoundly controversial
or singularly uninteresting. In the rest of this Part, I advance three analytically
distinct conceptions of what it might mean for legal doctrine to constrain
the reasoning employed by judges (and lawyers). The categories identified
below admit of some overlap and are often hard to disaggregate in application.
Yet, their analytical bases remain fundamentally distinct. Each of these
conceptions also finds instantiation—in part, in whole, or in conjunction
with others—in the individual articles that follow, though I will not venture
to suggest which particular one is at play in each article.

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

17 See Leiter, supra note 8, at 111.

18 See Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605 (1908); see also
ANTHONY J. SEBOK, LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE 78-79 (1998)
(describing this usage and its origins).
1848 University of Pennsylvania Law Review [Vol. 163: 1843

“automaton[s].”19 It presupposes a belief in both the autonomy of legal

reasoning and in the obligatory nature of that autonomy. Indeed, as some
have pointed out, this form of constraint is often a caricature rather than an
accurate representation of how judicial decisionmaking in any real context
actually works. Nonetheless, it represents an extreme and idealized
understanding of doctrinal constraint that is often used as a foil to criticize
judicial reasoning.

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

its reasoning, by “forcing” it to approach the problem in a way demanded

by that category.
Unlike the absolutist model of internalized deduction, the constraint of
framing recognizes doctrine to legitimately constrain, but in a more limited
manner. Additionally, it makes no supposition about the autonomy of the
doctrine, or about the irrelevance of non-legal criteria. Indeed, it accepts the
possibility (and on occasion embraces the idea) that the constraint of
doctrine is motivated by normative considerations on which legal
doctrines are superimposed (e.g., efficiency, or information costs).

C. Conventionalist Constraint (Versus Rationalization)

A third important way in which doctrine might be seen to constrain
judicial reasoning originates in the norms and practices of the legal community,
the primary audience for a judge’s opinions and orders. To the extent that
judges are members of a community where their opinion writing is seen to
require express reliance on the language of legal doctrine, judicial reasoning
comes to be constrained by those practices, and in the process, legal
doctrine. In this understanding, the constraint comes less from doctrine
itself and more from the norms surrounding its use within the relevant
community.24 If it is indeed the case that the community of lawyers and
judges articulate their reasoning in a particular way,25 judges might thus
actually reach a decision based on criteria other than legal doctrine, but then
feel compelled to adhere to the conventions of opinion writing and present
their decision in the language of doctrine.26 Legal doctrine then—through
its surrounding conventions—becomes a constraint. The conventionalist
constraint is thus in large part a “stylistic” constraint, where adherence to a
particular style in the expression of legal reasoning is seen as obligatory.
To the Legal Realists, of course, the existence of such conventions was
hardly a constraint. To many of them, most notably Felix Cohen and

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

Jerome Frank, the process of articulating a judicial opinion in the language

of legal doctrine when the actual reasoning of the judge originated
independently of the doctrine, i.e., in extra-doctrinal considerations, was
indeed the basic problem.27 The process was instead to them nothing more
than formal ex post “rationalization,” where doctrine enabled judges to
“conceal” the real reasons for the decision.28 Cohen thus observed that in
such judicial rationalization the doctrinal “grounds of decision often represent
nothing more objective than a resolution to use sanctified words wherever
specified results are dictated by undisclosed determinants.”29
The difference between the constraint of convention and “rationaliza-
tion” is subtle yet analytically important for our purposes. In the former,
the constraint is real in the sense of obligating courts to speak the formal
language of legal doctrine in order to legitimate their opinions and maintain
systemic continuity with other participants (i.e., other courts, superior
courts, lawyers); whereas in the latter, the constraint is artificial and
entirely a trope that is set up to justify the court’s exclusive reliance on
doctrine, which in turn masks the true grounds of decision. Determining
when a court relies on one or the other is often a complex empirical ques-
tion that is hard to answer in any individual case.

* * *

The multiple senses in which legal doctrine can be understood to

“constrain” judicial reasoning thus serve to complicate the question of
whether courts are indeed so constrained today, despite the influence of
Legal Realism. There is, of course, the further issue of whether such
constraints—even if shown to exist as an empirical matter—serve important
systemic and institutional purposes (such as the maintenance of a separation
of powers) that render their real or artificial nature somewhat secondary.
The articles in this issue grapple with these dimensions of doctrinal
constraint as well, as they relate to the individual substantive areas under
investigation.

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

II. THE CONSTRAINT OF LEGAL DOCTRINE IN

DIFFERENT AREAS OF THE LAW
As noted previously, each of the articles in this issue examines the
question of doctrinal constraint within a particular area of the law, in an
effort to shed light on the overall role of legal doctrine today within the
world of legal and judicial reasoning. Not surprisingly, each approaches the
question somewhat differently. The overwhelming conclusion that the
contributions point to may seem somewhat unexceptional: legal doc-
trine remains an important constraining force on legal and judicial reason-
ing today. What the contributions additionally highlight, though, is how
different substantive areas have internalized the idea of constraint into their
everyday functioning.
As a purely empirical matter, there appears to be hardly any substantive
area of law that has managed to distance itself altogether (or even signifi-
cantly) from relying on legal rules and principles in its approach to reasoning.
The challenge, of course, is determining why this constraint continues to
exist, even after the rule- and doctrine-skepticism of Legal Realism. As
Brian Leiter’s contribution in this issue argues, not only was this to be
expected, but it was also in keeping with the fundamental premise of Legal
Realism.30 Since legal doctrine is little more than a crystallization of a
particular set of normative standards in an area, and the Realists acknowl-
edged that judges decide cases by reference to normative criteria, it was in
some ways inevitable that doctrine would remain an aspect of legal reason-
ing even in a post–Legal Realist landscape.31 To Leiter, the contemporary
importance of doctrine—reformed to bring it closer to the real normative
criteria actually used by courts—represents the success, rather than the
failure, of Legal Realism.32
Hanoch Dagan’s contribution focuses on the role of doctrinal categories
in the law, and their compatibility with the core lessons of Legal Realism.33
Unlike others, however, Dagan offers a reconstructed version of Legal
Realism that builds on his prior work. In his account, Legal Realism, when
so “charitably interpreted,” sees the need for doctrinal categories so long as
they do not assume a life of their own and exhaust the domain of legal
reasoning. 34 Doctrine—and doctrinal categories—are, to Dagan, compo-

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

nents of the lawyer’s craft, which Realism sees as critical. 35 Dagan

therefore suggests that once Legal Realism is reconstructed in this manner,
the “puzzle” of contemporary doctrinal dominance despite the influence of
Realism disappears altogether, since doctrine comes to be seen as one
important—though not the only—component of legal decisionmaking in the
Realist universe. In this respect, his conclusion is similar to Leiter’s.36
Whether or not Legal Realism ever set out to eliminate any and all
reliance on doctrine, Celia Fassberg’s fascinating account of the “conflict of
laws revolution” that was spearheaded by Legal Realists shows us precisely
why such a wholesale abandonment (of legal doctrine) may have been
wrong-headed from its very conception.37 Fassberg shows how conflict of
law scholarship and law reform initiatives in the mid-twentieth
century attempted to distance legal reasoning from formal blackletter
doctrine and conceptual thinking, in an effort to focus on the real normative
and strategic considerations that were at play in courts’ decisions. 38 The
result, as Fassberg points out, was complete disarray, eventually resulting
in a return to more structured doctrinal mechanisms.39 Fassberg places the
primary blame for this on the Legal Realist critique of doctrine, but
cautions that conflict of laws as an area might be an outlier given its
peculiar relationship to Legal Realism, and its trans-substantive dimension.
Modern trends in the area, she notes, seem to be translating the basic
lessons of Realism into a doctrinal approach, again recognizing the inevita-
bility (and importance) of legal doctrine that itself better represents the
issues and values at stake.40
Doctrine continues to play a critical role in the three primary areas of
the common law: property, tort, and contract. In Henry Smith’s account,
property law today remains heavily doctrinal primarily because of its basic
structure as a “system” that seeks to manage the informational problems
that flow from the law’s need to regulate complex interactions between
an indeterminate number of individuals and discrete resources. 41 Smith
points out that despite Legal Realism–inspired claims about the “disintegra-
tion” of property and its fragmentation into an elusive “bundle of rights,”

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

42 Id. at 2059-2061, 2067-74.

43 Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. PA. L. REV.
2131, 2135 (2015).
44 Id. at 260-65, 268-69.
45 Id. at 2170.
46 Tess Wilkinson-Ryan, Intuitive Formalism in Contract, 163 U. PA. L. REV. 2109, 2110-11
(2015).
47 Id. at 2126.
48 Id. at 2127-28.
1854 University of Pennsylvania Law Review [Vol. 163: 1843

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

indeterminacies in the application of the statute’s primary directives.56 In so

doing, we argue, the Court appears to be following an age-old approach to
judicial lawmaking, referred to as the process of determining the “equity” of
the statute. By adopting this approach, the Court’s jurisprudence accepts
the indeterminacy critique of pure textualism, but at the same time shows
fidelity to the constraint of core legislative ideals and principles that it
discerns from the structure of the statute.57 Much like Murray’s point in
family law, we argue that copyright doctrine—as revealed in the Court’s
jurisprudence under the 1976 Copyright Act—extends to certain basic
principles and ideals that it sees as integral to the working of the copyright
system, that is, the “equity” of the copyright statute so to speak.58 The
Court draws these principles from prior case law, the Constitution, or at
times from its own intuitions; and at all times emphasizes that these
principles constrain its decisionmaking.
Moving to a third specialized area, the law of corporations, Edward
Rock approaches the question of doctrinal constraint through a uniquely
comparative lens.59 To examine the question of doctrinal constraint Rock
takes two important corporate law issues—controlling shareholder
freezeouts and bondholder exit consents—and within those issues con-
trasts the approaches of English and American courts.60 American judicial
reasoning is commonly believed to have internalized the lessons of Legal
Realism, whereas English judicial thinking is taken to represent the vestiges
of Legal Formalism. Upon undertaking this fascinating comparison, Rock
concludes that while judges in both legal systems arrive at more or less
similar solutions to the problems that they identify, their “styles of
decisionmaking are strikingly different.”61 American (i.e., Delaware) judges
appear to tackle the policy and economic issues at stake directly as part of
their reasoning, whereas English judges do so from within the language of
case law and the traditional sources of legal reasoning. While Rock is
circumspect about whether the difference actually affects outcomes in cases,
he concludes that one of the effects of Legal Realism on reasoning in this
domain may have been its relaxation of the stylistic (or formal) constraints

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.

III. JOHN DICKINSON ON THE CONSTRAINT OF LEGAL RULES

It is particularly fitting that this Symposium on the role of legal doctrine
in legal reasoning is being published in the University of Pennsylvania Law
Review. In addition to being the site of some of the most trenchant (and
often times acrimonious) debates about Legal Realism,67 the journal was
also the site of one of the earliest systematic explorations of this very topic
during the heyday of Legal Realism, conducted by a former member of the
University of Pennsylvania Law School faculty, John Dickinson.68 Dickinson
was trained as a political scientist and lawyer, and spent a good deal of his
scholarly attention exposing the inadequacies of extreme Legal Realism.69
In an article titled Legal Rules: Their Function in the Process of Decision,70 he

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

set out to explore—in no uncertain terms—the extent to which legal rules

(i.e., legal doctrine) constrain judicial decisions. His conclusion on the issue
was rather poignant:
The fact that legal rules do not always dictate decisions of cases does not,
however, mean that they may not have influence, and sometimes a controlling
one, in the process of decision. Sceptics who minimize the influence of such
rules often seem only disappointed absolutists, who expected the traditional
theory of legal determinism to work out to the bitter limit of its clock-work
logic, and on finding it play them false, react into an opposite extreme of
naïve unwillingness to recognize the less absolute, but none the less rela-
tively effective, way in which legal rules do their work, holding an impossibly
exalted view of certainty, they insist on all or none.71
In examining the issue, Dickinson’s piece undertakes a detailed survey of
the ways in which judges employ legal rules, and the effect that such rules
have on their thinking and reasoning.72 Indeed, he anticipates some of the
principal mechanisms described previously, 73 including the framing role
of legal doctrine as a source of constraint.74 While he disagreed with the
claims of the extreme (or “skeptical”) school of Legal Realists, his core claim
was that the central insights of Legal Realism—involving the role of
“policy, taste, and value judgments” in judicial decisionmaking—were
indeed compatible with a constraining role for legal doctrine,75 and that a
happy equilibrium between them should not be ruled out in advance.
Dickinson died young,76 and most of his work on the role of legal doc-
trine in legal reasoning remains underappreciated. The articles that follow
pay implicit tribute to Dickinson’s line of inquiry by carrying it forward
into the twenty-first century, and they do so by respecting his cautionary
note that the question of constraint be approached in a less absolute and
more nuanced manner, thereby making “sound progress” in our under-
standing of the “technique of legal thinking in the application and elabora-
tion of law.”77

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.