Karl Llewellyn, American Legal Realism, and Contemporary Legal Behavioralism

Author(s): David E. Ingersoll

Source: Ethics, Vol. 76, No. 4 (Jul., 1966), pp. 253-266
Published by: The University of Chicago Press
Stable URL: http://www.jstor.org/stable/2379232 .
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 KARL LLEWELLYN, AMERICAN LEGAL REALISM, AND
CONTEMPORARY LEGAL BEHAVIORALISM
DAVID E. INGERSOLL
IN THIS day of conflictin legal theory
between behavioralists' and tradi-
tionalists with their radically differ-
ent approaches to the study of legal
phenomena it may seem strange to
raise, once again, the specter of the
movement in the United States known
as legal realism. From this perspective
the realist controversy of the thirties
and forties seems at best a bit anti-
quated. In a sense, then, what follows is
somewhat in need of justification.-
American legal realism was an at-
tempt to inject the methodological
rigor and "spirit of scientific investiga-
tion" into a study of law dominated by
deductive logic, a rather stringent con-
ception of precedent, and a mechanical
notion of judicial function.2Legal real-
ism appeared to students of the period
to be a radical if not revolutionary at-
tempt to change totally the orientation
of legal scholarship and to redefine the
very province of law. Even from this
historical perspective one must marvel
at the audacity of many of the notions
advanced by the realists-reliance onr
sociological, psychological, and eco-
nomic data in the analysis of judicial
behavior, advocacy of a predicative
legal science, a functional and relativ-
istic conception of the role of law-
to name but a few ideas.
It may be contended, however, that
legal realism, revolutionary though it
may have been, is a dead issue. With
the deaths of Judge Jerome Frank in
1957 and Karl Llewellyn in 1962 most
253
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of the prominentmen of the movement
are gone. Thurman Arnold, writing in
1957, declared that "realistic jurispru-
dence is a good medicine for a sick and
troubled society. The America of the
early 1930's was such a society. But
realism, despite its liberating virtues,
is not sustaining food for a stable civi-
lization."3 In a similar vein, Hessel E.
Yntema has recently said that "in its
practical bent, its assumed anticoncep-
tualism and accentuated modernism,
and its provincial preoccupation with
the particularities of existent law, the
realist movement was a child of its
time."4
Is American legal realism then noth-
ing but an interesting historical phe-
nomenon to be relegated to the realm
of peculiar movements in the history of
Law? I think not, and it will be the
purpose of this paper to indicate that
the ideas advanced by the realists were
very much the same notions which are
central in legal theory today. It is fur-
ther asserted that the realists per-
formed an extremely valuable and suc-
cessful "ground-breaking"task in in-
troducing social science methodology
into legal scholarship.Indeed, when one
compares the assumptions and con-
cepts of contemporary legal behavior-
alism with those of the realists one is
struck by an amazing similarity. It ap-
pears as though the modern "radicals"
of legal scholarship are very much the
intellectual progeny of the old realists.
Such "parenthood"of the realist move-
254
ment is infrequently acknowledged.
Typical is the statement of Glendon
Schubert that the behavioral persua-
sion in law is the product of original
thinking during the past decade. "But
the decades from 1880 to 1950 saw
little change in the methods of analysis
employed by the political scientists,
lawyers and law professors, and histor-
ians who studied public law."5 While
Schubert and others have briefly ac-
knowledgedthe "ground-breaking"role
of legal realism,6there has been no sys-
tematic exposition of realist ideas to
show their relevance to current scholar-
ship.
Finally, if the currentliterature is an
adequate indication, it seems we mis-
perceive some of the central thrusts of
the realist movement. When modern
commentators go beyond the stage of
terming realism "radical," revolution-
ary, or the like, the movement is nor-
mally characterized in the words and
actions of Frank. While there is no
doubt that Frank played a crucial role
in the realist movement, he was not the
only person who merited the term
"realist." Indeed, Frank could speak
of some members of the realist move-
ment as mere "left-wing adherents of
a tradition" and of himself as having
completely "revolted" from that tradi-
tion.7 Yet most modern commentators
characterize legal realism in terms of
the thought of Frank.8 But if Frank
felt he was a "left wing" realist, some
effort ought to be expended to discover
what a realist "of the center" believed
and whether the thought of so-called
moderate realists differed substantially
from the rather well-known ideas of
Frank.
In the illuminating preface to the
1948 edition of his classic Law and the
Modern Mind, Frank declared the ex-
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ETHICS
istence of a profound cleavage within
realist ranks: two "camps,"one domin-
ated presumably by Frank, the other
by Llewellyn.9 Too little attention has
been paid to Frank's pregnant obser-
vation. In formulating a distinction be-
tween realists who were "rule sceptics"
and those who were best designated as
"fact sceptics" he had discovered a
difference among realists which, if ex-
plored sufficiently, could lead to a ma-
terially different interpretation of the
realist movement as a whole. While
American legal realism is generally
characterizedin terms of Frank's "fact
scepticism," it was the moderate real-
ists-the "rule sceptics"-who enun-
ciated and developed methods of anal-
ysis which, in crude fashion, were quite
similar to those of contemporarybehav-
ioralists. By exploring the ideas of
Llewellyn, a moderate realist, contrast-
ing them with the "left wing" of the
movement, and comparing them with
some of the assumptions of contempo-
rary legal behavioralists one achieves
not only a more accurate historical pic-
ture of the realist movement but an in-
dicationof some of the persistent themes
in modern American jurisprudence.
Roscoe Pound, in introducing his
program of sociological jurisprudence,
proposed that a distinction be made
between what he called "law in books"
and "law in action."10Underlying this
distinction was the presupposition that
very often what judges said about a
given decision in their written opinion
was not really the determining reason
for that particular decision. Because of
the reliance of the profession on de-
ductive logic, written opinions were
couched in terms of quasi-syllogisms-
the rule of law as the major premise,
the particular facts of the case as the
minor. It had been often suggested, if
 KARL LLEWELLYN,AMERICANLEGALREALISM
not conclusively demonstrated,that this
was not an accurate description of how
the judge arrived at his decision.'1
Thus, the law as enunciated in case-
books and the law as it actually oper-
ated were quite possibly two different
things. If this was the case, the law as
stated in the authoritative materials
was not the law at all, and those who
relied upon the "sayings" of judges
really misperceivedthe actual workings
of the judicial process. This situation
was particularly distressing to the law-
yer, who ofttimes pleaded his case on
the basis of the authoritative materials
only to find that the court would "dis-
tinguish" his particular fact situation
from the general rule in such matters.
According to the realists, such judicial
action produced the very thing which
the notion of stare decisis was designed
to prevent-uncertainty in the law.
Given this perception of judicial behav-
ior the realists seized upon Pound's dis-
tinction between law in books and law
in action and used it as the cornerstone
of their attack on the traditional doc-
trine of precedent.
The doctrine of the controlling na-
ture of a well-establishedlegal rule was
the cardinal assumption of the legal
tradition. In theory it provided for the
stability and continuity which are the
necessary prerequisites of any legal
system. There existed a pronounced
tendency to conceive of the law as a
self-contained body of rules which were
periodically applied to social situations.
Even in the minds of the most tradi-
tional of legal scholars the law must
adjust, to a certain extent, to the chang-
ing patterns and mores of an individ-
ual society. However, this alteration
consisted of minor adjustmentsand was
conceived of as an "abnormal" pro-
cedure-the law for the most part was
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255
considered "well settled."' Given the
regularity and continuity supposed to
exist through the doctrine of binding
rules, the lawyer pleading his case and
the public in general should have been
able to predict fairly accurately future
judicial action on any given matter.
Carriedto its logical extreme, of course,
this notion of pre-established legal
norms controlling future decision-mak-
ing would have abolished the role of
the lawyer. If a point of law were well
settled, it would only be necessary to
look to the authoritative materials to
decide the outcome of most cases.
The realists, however, declared that
the major failing of traditional legal
theory and the doctrine of stare decisis
was its inability to predict accurately
future judicial action.'3 The traditional
notion of precedent did not, in their
eyes, provide accurate guidelines where-
by lawyers and scholars, much less lay-
men, could foresee what a court would
do in any given matter. Although
united in their skepticism of traditional
rules, when they moved to consider just
why the doctrine of precedent was in-
sufficient,the answers given by varying
members of the movement were quite
different. It is on this point that heed
must be paid to Frank's description of
a cleavage within the movement.
these "constructive skeptics" [realists],
roughly speaking, do divide into two groups;
however, there are marked differences, ignored
by the critics, between the two groups. The
first group, of whom Lewellyn is perhaps the
outstanding representative, I would call "rule
skeptics." They aim at greater legal certainty.
. . . They believe that they can discover behind
the "paper rules" some "real rules" descriptive
of uniformities or regularities in actual judicial
behavior.
But the fact skeptics go much farther. . ..
No matter how precise or definite may be the
formal legal rules, say these fact skeptics, no
matter what the discoverable uniformities be-
256
hind these formal rules, nevertheless it is im-
possible, and will always be impossible . . . to
predict future decisions in most (not all) law-
suits.14
Llewellyn and the other rule skeptics
were looking for methods other than
the traditional doctrine of rules to pre-
dict judicial behavior more accurately.
Total fact skeptics decried the possibil-
ity of finding any method for more cor-
rect prediction. This distinction is im-
portant, for it leads to a totally different
conception of the role and function of
a legal system, depending upon the
stance adopted. It is further significant
in that, as noted above, the common
characterization of legal realism is in
terms of "fact skepticism."
The focus of fact skeptics was pri-
marily on procedure in trial courts,
while the rule skeptics concerned them-
selves solely with the appellate system.
By the time a case reaches the appellate
level the "fact questions" involved are
supposedly settled; the trial court has
accomplishedthis task. Thus, according
to Frank, the rule skeptics presupposed
the existence of a fact situation which
may be completely incorrect, and at
best is greatly colored'by the percep-
tion of- the trial judge and/or jury. In
such a situation what does it mean to
say that the facts of one case are sub-
stantially similar to those of another?
"Since, however, no one knows what
the trial court will find as the facts,
no one can guess what precedent ought
to or will be followed either by the trial
court or, if an appeal occurs, by the
upper court."'-5The major factor in le-
gal uncertainty is, then, fact uncertain-
ty-"the unknowability, before the de-
cision, of what the trial court will 'find'
as the facts, and the unknowability
after the decision of the way in which
it 'found' those facts."'6 Thus, Frank
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ETHICS
contends, the search for real rules of
judicial behavior engaged in by rule
skeptics is equally as foolish as the
paper-rule doctrines of the traditional-
ists. "This weakness will also infect
any substitute precedent system, based
on 'real rules' which the rule skeptics
may discover, by way of anthropology
... or psychology, or statistics, or stu-
dies of the political, economical, and
social backgrounds of judges or other-
wise."17
Thus, Frank has outlined two totally
different orientations within the realist
movement. The fact skeptic is prima-
rily concerned with problems of human
perception and their effect on the ad-
ministrationof justice. If the individual
perception of fact is so colored by var-
ious predilections and perspectives,
there is little chance of finding actual
similarity between factual situations.
If this is so, the traditional doctrine of
stare decisis is relatively useless in that
it presupposes the existence of similar
situation types in order to achieve a
"just" result. Thus, the fact skeptic is
questioning the possibility of justice
obtaining at all within any legal system
based upon a notion of controllingprec-
edent. It is the fact skeptic who con-
centrates on the "uniqueness" of the
individual case and despairs of the pos-
sibility of providing stability in the law.
The fact skeptic not only was suspi-
cious of the traditional doctrine of rules
but thought that any attempt to show
continuity in behavior probably would
fail. As Frank put it: "I have been at
pains in later writings to point out . . .
what I consider the folly and the unde-
sirability of striving to create either
a legal science or 'social sciences.' 18
Perhaps justice could be served best by
freeing the individual judge of any re-
liance on past decisions-letting him
 KARL LLEWELLYN,AMERICANLEGALREALISM
decide each case in what he perceives to
be the correct manner.19
On the other hand, Llewellyn's main
argument with the traditional doctrine
of precedent was that it preached the
existence of certainty where little ex-
isted. "Paper" rules that purported to
describe past judicial behavior and per-
mit prediction of future action were
so open to judicial manipulation that
they made prediction extremely diffi-
cult. In Llewellyn's eyes it was not be-
cause paper rules were incorrect but
because they contained only a partial
truth. Traditional rules did guide
judges in their decisions, but not to the
extent claimed.20If, as Llewellyn be-
lieved, relative predictability and cer-
tainty are both possible and desirable
traits in any legal system, the obvious
area of investigation lies beyond paper
rules in the objectively observable be-
havior of judges. Perhaps here empir-
ical generalizationsmore accurately de-
scriptive of their behavior can be found.
Such generalizations, supplemented by
traditional rules, might lead to hypo-
theses which would make prediction
more accurate. The orientation of the
rule skeptic is thus totally different
from that of the "left-wing" fact skep-
tic. The former presupposes the exist-
ence of relatively similar fact situations
and concerns himself with discovering
ways by which uniformities in judicial
behavior may be discovered. The lat-
ter despairs of the possibility of insur-
ing any kind of uniformity. This dis-
tinction between realists becomes even
clearer if one examines the relative po-
sitions of Frank and Llewellyn on the
component elements of a legal rule.
The traditional conception of rules
and the doctrine of stare decisis con-
tained two often undifferentiated as-
pects, one descriptive, the other pre-
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257
scriptive. A legal rule provided, in the-
ory, an accurate description of how
a judge or judges had acted in a past
situation. This assumption was widely
disputed by this time.2"It seemed fair-
ly obvious that judges do not think in
syllogistic terms and that, even if they
did, formal logic by no means guaran-
tees the correctness of the result. The
selection of the major premise (the
binding rule) is dependent upon the
initiation of the actor. Without laboring
what today is an obvious point, let
us assume that the "law in books"
did accurately portray judicial action:
should this past judicial behavior be
used as a norm for future decision-mak-
ing? The underlying assumption of the
notion of stare decisis is that it should.
Contained in this assumption are the
suppositions that (a) fact situations
are repetitive and (b) the judge (or
judges) acted "correctly" in his past
decision.
First, if the binding legal rule is to
provide an ought dictate which pre-
scribes future judicial action, the fact
situation which was an integral part of
that decision must be sufficiently simi-
lar to a present situation that the same
rule may be applied. Notice that such
a view assumes a rather static view of
society insofar as the facts in both in-
stances must be almost identical to
provide a "just" decision. If the fact
situation in a present case is materially
differentin any way, what was a correct
ruling in the past may be completely
unjust under new circumstances. The
early demands of the realists for "nar-
rower categories" of legal norms indi-
cated their desire to "stick close to the
facts" of cases to insure that a rule
was not applied arbitrarily to differing
factual situations.22
Second, if a precedent is to have any
258
force, it must be assumed that a judge,
in establishing or invoking a rule, made
a correct decision. This assumption is
built into the doctrine of precedent
much as any "custom" theory presup-
poses that what has in fact happenedis,
for that reason alone, "correct." The
factual event which attests to the es-
tablished existence of a precedent is a
sufficient basis for the ensuing ought
judgment that such precedent should
be followed. In order to justify the use
of a prior decision, the notion that such
action was "just" or "correct"must be
present. Thus, when a judge says "the
law on this matter is," he is actually
indicating that "the correct past action
on matters of this sort is."
The realists in general contended
that too often a legal rule or line of
precedent was totally abstracted from
the fact situation in which it was orig-
inally enunciated. Llewellyn, for ex-
ample, could abide by the traditional
doctrine of precedent insofar as it real-
ized that the fact assumptions of a
given rule were an integral part of that
rule. He contended that traditional
legal thought paid too much attention
to the normative components in au-
thoritative materials.23Insofar as the
normative aspect of the rule was
seen as the whole rule, it was a distor-
tion of the judicial decision, both as a
description of a past event and as a
prescription for future action. A long-
standing precedent, established and
sufficient for a non-mechanizedsociety,
could only be applied to highly motor-
ized transportation systems with ex-
treme care-the difference in the fact
situations would make the precedent
at best a dim guide to possible action.
Abstracting and absolutizing the nor-
mative conception of freedom of con-
tract, for example, had produced some
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ETHICS
of the absurdities of the Supreme
Court's actions with respect to econom-
ic matters in the first several decades
of the twentieth century.24
It was Llewellyn's contention that
even Pound's sociologicaljurisprudence,
which involved profound breaks with
the legal tradition, continued to over-
emphasize the normative component of
the doctrine of rules. Whereas Llewel-
lyn was greatly concerned with the
varying factual material embodied in
rules, Pound retained the traditional-
ist's affinity for emphasizing the value
aspect. In his catalogue of "jural pos-
tulates" Pound clearly indicated his
stress on the normative aspect of the
doctrine of rules,25whereas Llewellyn,
with his factual concern, could never
engage in such "abstractions." They
were, he thought, a distortion of legal
reality. Llewellyn conceived of a prop-
erly constructed legal rule as having
an intimate connection with the social
situation to which it applied. If this
notion were coupled with a conception
of truly "unique" fact situations it
would result in a total distrust of any
abstraction in the law. Frank, in speak-
ing of fact uncertainty often ap-
proached this position. Llewellyn, the
rule skeptic, felt that fact situations
were sufficiently similar that abstrac-
tion was possible, but he retained a
healthy skepticism of high-level ab-
straction. If Llewellyn emphasized the
fact component of the fact-value total-
ity which comprised a legal rule, other
realists, the fact skeptics of Frank's
breed, overemphasizedthe factual com-
ponents and achieved a distortion of
reality as great as Pound's. Frank felt
that legal rules were "relatively subor-
dinate." "The notion that rules are au-
thoritative and constitute law hampers
the adequate administration of justice.
 KARL LLEWELLYN, AMERICAN LEGAL REALISM
That notion is traceable to the basic
legal myth. We shall have better law
when, by riddingourselves of that myth,
we come to recognize the relatively sub-
ordinate importance of rules." To
Frank's mind the fact uncertainty of
the trial stage of any legal proceeding
raised an insuperablebarrier to any no-
tion of regularity in the law.
In contrast to the fact skepticism of
Frank, Llewellyn's criticisms of the
doctrine of precedent do indeed seem to
come merely from a "left wing adherent
of the tradition."27If one can conceive
of a spectrum of positions on the com-
position of fact and value elements in
legal rules, Pound would be on the
"right," Llewellyn in the "center," and
Frank on the far "left." Llewellyn's em-
phasis on the factual components of le-
gal rules was dictated by the overem-
phasis of the legal tradition on the value
components. Frank, however, placed
such a great emphasis on the factual
component that he was prone to deny
the efficacy of any normative doctrine
of rules. He thus was led to a study of
the psychological, sociological, and eco-
nomic factors which play upon individ-
ual judicial decision-making. Many of
the charges of the advocacy of "judicial
oligarchy"which were advancedagainst
the realists had as their basis Frank's
notion of the unfettered judge, dispens-
ing justice unguided by institutional
restraints. Frank's obvious approval of
many of the aspects of the "free-law"
movement on the Continent only added
to the perception of legal realism as a
movement advocating unrestrained ju-
dicial law-making.28Those who charged
the realists in general with advancing
the cause of judicial oligarchy neglect
the significant point that what the rule
skeptics sought was greater predictabil-
ity and greater control over judicial dis-
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259
cretion. The realists contended such
regularity might be found by introduc-
ing materials and methods of analysis
from outside the traditional conception
of law. The rule skeptics found such
methods of analysis in the rapidly grow-
ing area of social-science methodology.
Thus, while the fact skeptics concen-
trated upon the uniqueness of individ-
ual decisions and fact uncertainty, the
rule skeptics turned to the social sci-
ences for methods and information
which would help them introduce great-
er continuity into the study of legal
phenomena. This is not to say that the
fact skeptics did not engage in similar
investigations of the judicial process.
Indeed, as will be indicated, some of
Frank's analyses were leading contribu-
tions to the scholarship. Both the fact
skeptics and rule skeptics were con-
cerned with discovering social and psy-
chological factors which influenced ju-
dicial activity. Their purposes in under-
taking this type of study were quite
different, however. Frank used the in-
formation that indicated a vague corre-
lation between judicial attitudes and
types of decisions rendered to support
his thesis that the judge should be freed
from great reliance on rules and be per-
mitted to dispense openly "justice" in
individual cases. Llewellyn, on the other
hand, used such data to enhance the
doctrine of precedent. He argued that if
the judge could be made aware of the
effects of his attitudinal preferences on
his behavior he would be able to com-
pensate for them in his activity, instead
of hiding them under the cloak of stare
decisis.29Thus the rule skeptic was us-
ing information to establish patterns of
regularity in decision-making, the fact
skeptic to decry the possibility of regu-
larity. In this pursuit of methodological
devices which might provide a clearer
260
understanding of judicial activity the
rule-skeptic branch of legal realism di-
rectly predated many of the efforts of
modernadvocates of legal science.
The realists' willingness to borrow
potentially fruitful concepts from other
disciplines led them along many diver-
gent paths. There was no agreement,
even among rule skeptics, as to which
methodological devices would prove
most useful; there was even disagree-
ment as to which aspects of the judicial
process were most amenable to empiri-
cal study. Their sole agreement was
that whatever the analytical concepts
adopted or subject matter examined,
the emphasismust be placed on the "be-
havior" of judges. As Llewellyn put
it, "one concerned with the law as a
social science, a science of observation,
must center his thoughts on behav-
ior."30 There are, however, three gen-
eral subject-matter areas in which the
realists concentrated their efforts: psy-
chological factors in law and attitudinal
preferences of judges, the effects of the
concept of judicial role and institutional
norms on judicial behavior, and the
general effects of social and cultural
norms on the legal institution.
Perhaps the most notorious example
of borrowingideas from other fields re-
sulted in Frank's use of Freudian psy-
chology as a device to explain what he
termed the "myth of judicial certainty."
As Judge Charles E. Clark has rightly
proclaimed, Frank's Law and the Mod-
ern Mind "fell like a bomb on the legal
world." Despite Frank's disclaimers
that his offering was but a "partial ex-
planation," his attempt to describe the
origins of the desire for judicial certain-
ty in judges and in laymen as manifes-
tations of the adult's renewedsearch for
a "father figure" became the prime ex-
ample of the excesses of the realist en-
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ETHICS
terprise. The psychological aspect of
Frank's thesis is best summarizedin his
own words. "That religion shows the
effects of the childish desire to recap-
ture a father-controlledworld has been
often observed. But the effect on law of
this childish desire has escaped atten-
tion. And yet it is obvious enough: To
the child *the father is the Infallible
Judge, the Maker of definite rules of
conduct. . . . The Law-a body of rules
apparently devised for infallibly deter-
mining what is right and what is wrong
and for deciding who should be pun-
ished for misdeeds-inevitably becomes
a partial substitute for the Father-as-
Infallible-Judge."3'Frank was roundly
condemned for utilizing the still tenta-
tive notions of Freud to analyze legal
phenomena. As he has related he was
called everything from a "determinist"
to an advocate of "behavioristpsychol-
ogy."32 Even Llewellyn, who was al-
ways rather tolerant of any type of in-
novation in legal scholarship, expressed
his incredulity. "One's first reaction is
amazement. How is it possible for the
canny student, who discriminates so
skillfully the proved from the dubious
when reading a legal writer, to swallow
at a gulp a yearning for pre-natal ser-
enity which is not only unproved but
unprovable."33 Despite the excesses
which have been committedin the name
of Freud in the ensuing years, Frank's
thesis today seems a rather correct (if
overly stated) observation of a certain
portion of human conduct as it relates
to legal phenomena.
Some of the notions of the so-called
behavioristic psychology had their ef-
fect upon men who were concernedwith
the observation of judicial behavior.
Herman Oliphant tended to rely solely
upon the overt physical behavior of
judges as sufficientexplanationsof their
 KARL LLEWELLYN,AMERICANLEGALREALISM
actions. Indeed, he counselled this type
of approachas the one way to return to
a really viable doctrine of state de-
cisis.34 Certainly Llewellyn's early defi-
nition of law in Bramble Bush had be-
havioristic overtones. "What these offi-
cials do about disputes is, to my mind,
the law itself."35It may be reasonably
inferred from these thirteen words that
adequate understandingof the law may
be achieved by mere observation of the
physical actions of "officials."Yet this
sentence is not an adequate indication
of Llewellyn's meaning, as he has point-
ed out. "In my own case, a single sen-
tence from page 3 of the original 'Bram-
ble Bush' . . . became, without any-
body's reading either the context or the
rest of the 'Bramble Bush' . . . this lone
lorn sentence became, internationally,
the cited goblin-painting of realism."36
Despite such disclaimers, the natural
tendency of realists to be sympathetic
to the aims of a movement which de-
preciated "words" and studied "ac-
tions" is not to be denied. However, it
might well be argued that an acid bath
of behavioral study was precisely what
the "word-oriented" legal tradition
needed. It might further be added that
an emphasis on overt behavior does not
necessarily exclude the utilization of
introspective reports from participants
or the study of "motivation"as a factor
in action. It is but a short step from
such an emphasis on "doing"to the em-
ployment of sociological techniques in
the analysis of judicial and institutional
function. The realists, following the
lead of Pound, asked that greater em-
phasis be placed upon factors which
might influence a judge in his decision-
making. Frank and others had talked
primarily in terms of psychological in-
fluences on judges, but the area which
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261
promised the greatest yield was socio-
logical investigation.
Concepts such as class, economic sta-
tus, and length of service on the bench
were consideredpossible areas to be in-
vestigated to discover, if, indeed, they
produced attitudes which affected deci-
sions made on the bench. Although the
realists were loud in proclaiming their
desire for such studies, most of what
was accomplished in this area came
from persons who were not specifically
associated with the movement.37Lle-
wellyn was particularly concerned with
conveying the basic notion that law was
an integral part of any social system.
The prior tradition had long considered
the legal system to be a self-contained
body of rules, subject to the little
change affordedby legislation and con-
stitutional amendment.There was little,
if any concern with the reciprocal ef-
fects between legal norms and social or-
ganization. In order to change this con-
ception of the role of law, Llewellyn
"borrowed"from sociology the concept
of an "institution." In contrast to the
traditionalists, who tended to concen-
trate their efforts on the structural as-
pects of the law, he used this notion of
a social institution to place great weight
upon the functional aspects of any body
of law. In a particularly aptly titled
article, "Law and the Social Sciences:
Especially Sociology," Llewellyn indi-
cated this emphasis. "The central as-
pect of an 'institution' is organized ac-
tivity, activity organized around clean-
ing up some job. In the case of the
major institutions (of which the institu-
tion of law is one), the jobs concerned
are vital to the continued existence of
the society or group."38
Although the concept of "institution"
seems vague and ill-defined in compari-
son to the more sophisticated sociologi-
262
cal terminology of today, the use of
such a notion did place the study of
legal phenomena well within the pur-
view of the behaviorally oriented ideas
of social science. The law is then made
fast to its proper role as one of the in-
stitutions (if not the major one) which
comprise what Llewellyn called "Law-
Government." If certain types of de-
vices could then be discovered to meas-
ure relationships between institutions,
intra-institutionalpressures,and the re-
sults of judicial activity in society, law-
yers and politicians would have an ex-
tremely valuable device with which to
pursue their craft. Although such de-
vices were never adequately explored
by the lawyer Llewellyn, there was little
doubt in his mind that sophisticated
statistical techniques could provide vi-
tal information.Indeed, as early as 1930
Pound was accusing the realists of hav-
ing too much "faith in masses of fig-
ures."9 Some rather elementary statis-
tical studies and field surveys were car-
ried out by other realists. In 1929
Herman Oliphant, Walter Wheeler
Cook, and Yntema established the Insti-
tute of Law at Johns Hopkins Univer-
sity for the purpose of investigating
numerous aspects of the legal process.
As Edwin Patterson has noted: "The
publications of the short-lived Hopkins
Institute ... revealed the empirical-sta-
tistical bent of its founders."40
The studies produced by the Insti-
tute of Law, as well as W. 0. Douglas'
investigation of bankruptcyand Under-
hill Moore's concern with the effects of
legal symbols on social action, were
prime attempts to develop methodologi-
cal devices which might shed light on
certain aspects of the legal process.4
During an era when these types of in-
vestigations were just being developed
in their parent disciplines it is a testi-
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ETHICS
mony both to the foresight and the au-
dacity of some of the realists that they
tried to apply such techniques to "the
most tradition bound of all disci-
plines."42
Perhaps the most "natural" social-
science discipline from which to borrow
methodological devices was anthropol-
ogy. The study of legal institutions in
other cultures had been one of the pro-
found contributions of the "historical
school" of jurisprudence,and this type
of investigation was carriedon by advo-
cates of Pound's sociological school.
Anthropology offered the realists the
possibility of investigating the interac-
tion between legal norms and social-be-
havior patterns in differing social mi-
lieu. Llewellyn in particular spent a
good deal of time and effort in study-
ing these relationships in the subcul-
tures of the American Indians. His ex-
tensive field surveys and empirical
studies of Cheyenne law led to his col-
laborationin a book with anthropologist
E. Adamson Hoebel on the law of the
Cheyenne.43In this work the authors
attempted to correlate, on a rather im-
pressionistic level to be sure, the legal
norms of the Cheyenne with the chang-
ing behavior patterns of the members
of the tribe. They concentrated on the
existence of continuity in the Cheyenne
approach to legal matters and conclud-
ed that one of the significant features
of Cheyennelaw was its ability to adapt
legal norms successfully to often subtle
changes in factual situations. Llewellyn
has left little doubt of the impact of this
study on his own development.44The
discovery of the existence of "reasona-
ble regularity"in a mature legal system
led Llewellyn to formulate a theory of
proper legal function and ultimately to
a theory of justice based upon the
"Cheyenne way.45
 KARL LLEWELLYN, AMERICAN LEGAL REALISM
In later life Llewellyn's concern fo-
cused on the role of judicially perceived
concepts of "proper" function in the
behavior of judges. He spoke in terms
of the "craft" of law and certain "law-
jobs" which formed a definite part of
the value structure of the judiciary. No
analysis of judicial attitudes would be
correct without the inclusion of these
institutional and professional values. In
his final major work Llewellyn outlined
fourteen institutional factors which
comprise not only internalized norms
for judges but external checks on the
behaviorof any single judge. These fac-
tors-length of service, legal training,
group decision-making,etc.-provide a
valuable starting point for the study of
institutional norms and judicial role.
Although many of the concepts and
methodologicaldevices borrowedby the
realists led them to relatively insignifi-
cant conclusions, their emphasis on the
study of legal phenomena as another
aspect of human behavior opened the
door to future use of concepts from
other disciplines which today form a
growing part of legal literature. In par-
ticular the enthusiasm of the rule skep-
tics for a scientific study of legal phe-
nomena, and their groping attempts in
that direction, provided a very real
sense of precedent for current, more
sophisticated attempts to analyze judi-
cial behavior.
One of the prime distinctions be-
tween the legal realists of the twenties
and thirties and the legal behavioralists
of today is that the formerwere for the
most part lawyers and law professors
where the latter are social scientists ap-
proaching the law from other disci-
plines. In addition to providing a differ-
ent perspective, such an orientationper-
mits the utilization of far more sophisti-
cated methodologicaldevices learned in
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263
other disciplines than those rather
crude tools employed by the realists.
What seems to be new in the behavioral
approach is the fact that existing hy-
potheses and current tools that can be
borrowed from behavioral science are
sufficiently refined to enable the legal
researcherto develop modes of analysis
which show promising signs of predict-
ability. S. Sidney Ulmer contends "that
if students of the judicial process, in
sufficientnumbers,shift the focus to be-
havioral regularities and the possibili-
ties of using quantitative techniques for
analysis, then theories and predictive
devices far superior to anything sug-
gested here may be discovered."46The
contributions of the behavioral move-
ment and analyses of their findings
have been summarized in many publi-
cations; there is no need to attempt to
add to that literature.47It is worthwhile
however, to note some of the parallels
in method of approach between the be-
havioralists and the realists. They both
begin with the assumption that legal
behavior is susceptible of study with
behavioral techniques-that law, to a
certain extent, is a part of social stud-
ies. Llewellyn's statement of the orien-
tation of the rule skeptics could well be
stated as the prime assumption of legal
behavioralism. "The behavior side of
matters legal is the same behavior
which is susceptible of analysis also
by a psychologist, an economist, or a
sociologist."48Today one might add to
Llewellyn's list a political scientist and
a mathematician, but the spirit of the
inquiry would be the same. The con-
cern of the behavioralists is avowedly
judicial behavior, their focus is on ac-
tion, and a prime concern is the predic-
tion of future judicial decisions. Fred
Kort in his "Analysis of Judicial Opin-
ions and Rules of Law" provides an ex-
264 ETHICS

cellent example of all these emphases: disillusioned with legal rules as an ex-
"The object of the present study is to planation of judicial conduct, the new
provide a quantitative formulation of behavioralists seek understanding by
rules of law.... More specifically, the mathematicalanalysis of judges' voting
proposed quantitative formulationis-di- records-often regardless of judicial
rected at that part of the rule of law talk.""5It is impossible to read such
which refers to various possible combi- statements without recalling a vague
nations of the specified set of circum- echo from the past: "It is argued [by
stances. Each combination of circum- this group of men] that the only objec-
stances represents the facts of the case tively valid phenomena are those dis-
to which the rule of law is applied.... coverable by statistical investigation of
The quantitative formulation in ques- the operations of judicial institutions,
tion will attempt to weigh numerically and the one valid method is a formula-
each possible combination of circum- tion of exact propositions on the basis
stances."49 thus afforded."52In addition to their
Kort's aim in this particulararticle is other affinities the realists and the be-
to focus attention on the factual com- havioralists stand condemned on simi-
ponent of the fact-value totality of a lar grounds.
rule in order to shed greater light upon To term legal realism a "successful"
the various fact clusters, with the even- movement courts presumption after
tual -hope of predicting how a given stating that its intellectual progeny in
court will act when confronted with a the form of behavioralismis the center
similar set of fact components. of a present-day controversy. Yet real-
Kort's work is fairly representative ism has succeeded in at least making
of current analysis in the behavioralist legal scholars aware of the potentially
"movement." As Schubert has noted, fruitful results to be obtained through
the methods of approachmay vary, but the use of "extra-legal"methods of in-
their orientationis quite similar.50They vestigation. The very existence of a cur-
seek to discover "real" rules and "real" rent movement which is adopting such
reasons for judicial action, perhaps in devices as mathematical models and
contrast to the written opinions of symbolic logic attests to realism's
judges. The prime thrust of the behav- "ground-breaking"powers. Of course,
ioral movement at present seems to be legal realism was assisted in its drive
in the study of on-and-off-the-benchju- for an empirical study of law by simul-
dicial attitudes and the correlation of taneous developments both in law and
those attitudinal preferences with en- in the social sciences. Yet it is difficult
suing behavior on the part of the judge. not to consider the realist movement a
Certainly this was a prime concern of prime initiator of the empirical study
all the legal realists. of judicial behavior, for the major
Finally, one cannot help but note the themes of the realist revolt remain the
similarity of the criticisms which are central concerns of the behavioral
advanced against contemporarybehav- movement today.
ioralism and those mustered against the In particular,the rule skeptics' desire
realists. Wallace Mendelson, unsympa- for a scientific approach to legal phe-
thetic to much in the behavioral move- nomena, coupled with their attempts to
ment has recently stated: "Apparently discover concepts which would explain

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 KARL LLEWELLYN,AMERICANLEGALREALISM
and predict judicial behavior, provided
the impetus for continuing empirical in-
vestigations. Whereas the legal profes-
sion as a whole is by no means willing to
welcome behavioralistswith open arms,
there are at least indications that em-
pirical analyses of legal phenomena are
no longer dismissed out-of-hand. Some
of the credit for this grudging accept-
ance must go to the realists.
Finally, the picture of legal realism
as a movement designed to "destroy"
continuity and regularityin the analysis
of law must be dismissed. The rule
skeptics within the movement were mo-
NOTES
1. The phrase "legal behavioralists" is commonly
used to designate a group of social scientists who
seek to apply techniques developed in the social
sciences in an analysis of the judicial process.
Among their number are Glendon Schubert, Fred
Kort, Stuart Nagle, David Danielski, S. Sidney
Ulmer, Harold J. Spaeth, and Lee Loevinger.
2. Membership in the movement was ill-defined
at best. However, it is generally agreed that the
following were at one time or another advocates
of a "realistic method" in approaching legal phe-
nomena: Karl Llewellyn, Jerome Frank, Hessel
Yntema, Thurman Arnold, Walter W. Cook, Her-
man Oliphant, and Underhill Moore.
3. Thurman H. Arnold, "Jerome Frank," Uni-
versity of Chicago Law Review, XXIV (1957),
633.
4. Hessel Yntema, "American Legal Realism in
Retrospect," Vanderbilt Law Review, XIV (1960),
329.
5. Glendon Schubert (ed.), Judicial Decision-
Making (London: Collier-Macmillan Ltd., 1963),
p. 1.
6. Glendon Schubert, "Judicial Attitudes and
Voting Behavior: The 1961 Term of the United
States Supreme Court," in Hans W. Baade, (ed.),
Jurimetrics, (Durham, N.C.: Duke University,
1963), pp. 100-101.
7. Jerome Frank, Law and the Modern Mind
(6th ed.; Garden City, N.Y.: Doubleday & Co.,
1963), p. xii.
8. See Harold Gill Reuschlein, Jurisprudence:
Its American Prophets (Indianapolis, Ind.: Bobbs
Merrill Co., Inc., 1951), pp. 184-93; Julius Paul,
"Foundations of American Legal Realism," West
Virginia Law Review, LX (1957), 48; Bernie R.
Burrus, "American Legal Realism," Howard Law
Review, VIII (1962), 43. These examples could be
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265
tivated by a desire to improve the study
of legal phenomena and to increase the
degree of regularity in the judicial proc-
ess. In this endeavor they were in the
mainstream of the best American legal
scholarship. Llewellyn best expresses
the constructively skeptical attitude of
the realist enterprise: "But I should
think it a cheap valuation of our way-
ward, wilful, charming Mistress [the
law] to think that she must be kept
from comparison,or even scrutiny, lest
her charm should fail."53
UNIVERSITY OF DELAWARE
duplicated many times, but they will serve to in-
dicate the type of analysis of legal realism current.
9. Frank, op. cit., pp. x-xii.
10. Roscoe Pound, "The Scope and Purpose of
Sociological Jurisprudence," HarvardLaw Review,
XXV (1912), 514.
11. Initially and most profoundly by 0. W.
Holmes in both his speeches and writings.
12. This "spirit" of well-settled law is ex-
pressed in a variety of publications, particularly
the journal of the American Bar Association of
the period. Interesting in its analysis of this ques-
tion is Frederic R. Coudert's Certainty and Jus-
tice (New York: D. Appleton & Co., 1914).
13. See, e.g., Karl Llewellyn's discussion of
"stare decisis" in Bramble Bush (3d ed.; New
York: Oceana Publications, 1960).
14. Frank, op. cit., p. xxi.
15. Ibid., p. xvi.
16. Ibid., p. xiv.
17. Ibid., p. xvi.
18. Ibid., p. xxvi.
19. Note Frank's sympathetic treatment of the
Continental "free-law movement," which, in his
words, "considers equity and discretion the cen-
tral factors in the work of judges" (op. cit., p.
301).
20. "Do I suggest that the 'accepted rules,' the
rules the judges say that they apply, are without
influence upon their actual behavior? I do not.
I do not even say that, sometimes, these 'ac-
cepted rules' may not be a very accurate descrip-
tion of the judges' actual behavior. What I say is
that such accuracy of description is rare" (Karl
Llewellyn, "A Realistic Jurisprudence-The Next
Step," ColumbiaLaw Review XXX [1930], 444).
21. Ibid., p. 450. Of course, Holmes may be cited
as precedent for disputing such notions.
266
22. The desire for "narrower categories" is well
expressed by Karl Llewellyn in "Some Realism
About Realism-Responding to Dean Pound,"
Harvard Law Review, XLIV (1931), 1222.
23. Ibid. See also Karl Llewellyn, Columbia Law
Review, XXX (1930), 431.
24. For an attempt to show the "proper" form
in constructing rules see Karl Llewellyn, The Com-
mon Law Tradition (Boston: Little, Brown &
Co., 1960).
25. An excellent discussion of the prescriptive
elements in Pound's thinking is to be found in
Julius Stone, The Province and Function of Law
(Cambridge, Mass.: Harvard University Press,
1961).
26. Frank, op. cit., p. 306.
27. Ibid., p. xii.
28. Ibid., p. 303.
29. Karl Llewellyn, "On Reading and Using the
Newer Jurisprudence," Jurisprudence: Realism in
Theory and Practice (Chicago: University of Chi-
cago Press, 1962), pp. 141-43.
30. Karl Llewellyn, "Legal Tradition and Social
Science Method-A Realist's Critique," Juris-
prudence:Realism in Theory and Practice (Chi-
cago: University of Chicago Press, 1962), p. 78.
31. Frank, op. cit., p. 19.
32. Ibid., p. xxv.
33. Karl Llewellyn, "Law and the Modern Mind
-Legal Illusion," Columbia Law Review, XXXI
(1931), 85.
34. Herman Oliphant, "A Return to Stare
Decisis," AmericanBar AssociationJournal, XIV
(1928), 71, 159.
35. Llewellyn, Bramble Bush, p. 12.
36. Llewellyn, The CommonLaw Tradition,p.
511.
37. The classic example of this type of study is
C. Herman Pritchett, The Roosevelt Court: A
Study in Judicial Politics and Values 1937-1947 Approach to the Judicial Process: A Critique,"
(New York: Macmillan Co., 1948). AmericanPoliticalScienceReview, LVII (Septem-
38. Karl Llewellyn, "Law and the Social Sci-
ences: Especially Sociology," Jurisprudence: Real-
ism in Theory and Practice (Chicago: University
of Chicago Press, 1962), p. 355.
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ETHICS
39. Roscoe Pound, "The Call for a Realist Juris-
prudence," Harvard Law Review, XLIV (1930-
31), 701.
40. Edwin W. Patterson, Jurisprudence-Men
and Ideas of the Law (Brooklyn, N.Y.: Founda-
tion Press, Inc., 1953), p. 547.
41. Underhill Moore and Charles C. Callahan,
"Law and Learning Theory; A Study in Legal
Control," Yale Law Journal, I (1943); W. 0.
Douglas, "Some Functional Aspects of Bank-
ruptcy," Yale Law Journal, XLI (1932), 329.
42. Karl Llewellyn, Columbia Law Review,
XXX (1930), 454.
43. Karl Llewellyn and E. A. Hoebel, The Chey-
enne Way (Norman, Okla.: University of Okla-
homa Press, 1941).
44. Ibid., chap. xii.
45. Llewellyn, The CommonLaw Tradition.
46. S. Sidney Ulmer, "Quantitative Analysis of
Judicial Processes: Some Practical and Theoretical
Applications," in Hans W. Baade (ed.), Juri-
metrics (Durham, N.C.: Duke University, 1963),
p. 183.
47. Notably the bibliography contained in
Schubert (ed.), Judicial Decision-Making, and
Glendon Schubert, "Behavioral Research in Public
Law," American Political Science Review, LVII
(June, 1963), 433.
48. Karl Llewellyn, "The Theory of Legal Sci-
ence," North CarolinaLaw Review, XX (1941),
7.
49. Fred Kort, "Analysis of Judicial Opinions
and Rules of Law," in Schubert (ed.), Judicial
Decision-Making,p. 134.
50. Schubert(ed.), JudicialDecision-Making,p.
3.
51. Wallace Mendelson, "The Neo-Behavioral
ber, 1963), 593.
52. Pound, "The Call for a Realist Jurispru-
dence," p. 702.
53. Llewellyn, Bramble Bush, p. 44.