Legal realism untamed

Texas Law Review

Volumn 91, Issue 4, 2013, Pages 749-780

  Schauer, Frederick ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 84875531427     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (127)

1. Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 407 (1985) [hereinafter, Schauer, Easy Cases].
2. How best to understand Legal Realism and its legacy is contested terrain. Some scholars see Realism as focused not principally on legal indeterminacy, but instead on the contingency and nonneutrality of law and its baselines. E.g., Barbara H. Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement passim (1998).
3. Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy 169-212 (1992) (arguing that the most important legacy of Realism is in challenging the claim that legal thought was separate from moral and political discussion)
4. Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 475-95 (1988) (reviewing Laura Kalman, Legal Realism at Yale: 1927-1960 (1986) and maintaining that Realism recognizes that, because the state defines transactional rules, law is implicated in every transaction). Others understand it as the ancestor of modern methodologically sophisticated empirical legal studies.
5. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
6. Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 302 (2001) (reviewing Behavioral Law and Economics (Cass R. Sunstein ed., 2000) (drawing the connection between Realism and contemporary law and economics)
7. Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 302 (2001) (reviewing Behavioral Law and Economics (Cass R. Sunstein ed., 2000) (drawing the connection between Realism and contemporary law and economics)
8. Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 302 (2001) (reviewing Behavioral Law and Economics (Cass R. Sunstein ed., 2000) (drawing the connection between Realism and contemporary law and economics)
9. Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 Colum. L. Rev. 431, 444-57 (1930) [hereinafter, Llewellyn, A Realistic Jurisprudence].
10. See William Twining, Karl Llewellyn and the Realist Movement 32 (1973) (quoting a letter from Arthur Corbin observing that actual legal rules differed from the rules "in print"); see also Nathan Isaacs, Some Thoughts Suggested by the Restatements, Particularly of Contracts, Agency, and Trusts, 8 Am. L. Sch. Rev. 424, 428 (1936) (referring to "dry rules").
11. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
12. People tend to believe their own descriptions of most things to be realistic. Consequently, the capitalization of Legal Realism designates a school of thought rather than an attribute. Moreover, the capitalization distinguishes Legal Realism as a school of thought about law from various perspectives characterized as realist in meta ethics, metaphysics, and other branches of philosophy. The distinction is important, because realism in philosophy identifies positions supporting the existence of mind-independent entities, and thus of mind-independent reality. See, e.g., Lynne Rudder Baker, The Metaphysics of Everyday Life: An Essay in Practical Realism (2007) (offering a realist position in metaphysics).
13. Karl Olivecrona, Law as Fact (1939).
14. In saying "logically entailed, " I refer not to deduction, the process by which particular outcomes are generated by a general rule, but to subsumption, pursuant to which decision makers decide whether a particular act or event is included within a rule. The judge or police officer deciding whether an automobile traveling at eighty miles per hour is violating the sixty-five-milesper-hour speed limit begins with the particular observation and then assesses whether the particular falls under-is subsumed by-the rule. She does not begin with the rule and then determine which particular outcomes might, in the abstract, be deduced from that rule.
15. "Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer.... " C.C. Langdell, A Selection of Cases on the Law of Contracts vi (1871). Langdell recognized, however, that the identification of such principles and doctrines was a matter of induction from particular decisions and not deduction from abstract generalities, see C.C. Langdell, Classification of Rights and Wrongs (Part I), 13 Harv. L. Rev. 537 (1900).
16. see also David E. Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265, 273 (2008) (describing traditional formalism as committed to judicial decisions based on "legal materials alone").
17. William Blackstone, Commentaries 69.
18. For explication of Coke's idea, see Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 Texas L. Rev. 35 (1981).
19. See, for example, Matthew Hale, The History of the Common Law of England (Charles M. Gray ed., 1971) (1713), although Hale was more receptive than Blackstone or Coke to the influence of nonlegal factors on legal decisions.
20. Eugene Wambaugh, The Study of Cases: A Course of Instruction (2d ed. 1894).
21. John M. Zane, German Legal Philosophy, 16 Mich. L. Rev. 287, 338 (1918) ("Every judicial act resulting in a judgment consists of a pure deduction. ").
22. See Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging 71-89 (2010) (identifying Realist ideas in legal discourse as early as the 1870s).
23. Brian Leiter, Legal Formalism and Legal Realism: What Is the Issue?, 16 Legal Theory 111, 112 (2010) (stressing that Realism challenges even sophisticated versions of formalist accounts of adjudication).
24. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 395-96 (1950).
25. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
26. See, e.g., Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 Cornell L.Q. 274, 284 (1929) (describing the fact-based nature of a judge's initial reaction to a case).
27. Theodore Schroeder, The Psychologic Study of Judicial Opinions, 6 Calif. L. Rev. 89, 89 (1918).
28. Benjamin Nathan Cardozo, Jurisprudence, 55 N.Y. State Bar Ass'n Rptr. 263, 290 (1932).
29. The scholarship on the selection effect is vast, the canonical modern source being George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984).
30. The scholarship on the selection effect is vast, the canonical modern source being George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984).
31. Max Radin, In Defense of an Unsystematic Science of Law, 51 Yale L.J. 1269, 1271 (1942).
32. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
33. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
34. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
35. And especially in the Supreme Court, where the ideological valence of the issues and the miniscule number of cases actually decided presents the selection effect at its acme. See generally Frederick Schauer, The Court's Agenda-and the Nation's, 120 Harv. L. Rev. 4 (2006) (analyzing the Supreme Court's decisional agenda).
36. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
37. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
38. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
39. See Edward Stevens Robinson, Law and the Lawyers 167-91 (1935) (arguing that the concepts of jurisprudence must be assessed under the lens of psychological and sociological analyses).
40. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
41. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
42. (see, e.g., Scott J. Shapiro, Law, Morality, and the Guidance of Conduct, 6 Legal Theory 127 (2000) (defending exclusive positivism), we understand law as a domain of sources and inputs substantially narrower than those otherwise accepted within the society for, say, moral or policy decisions (on the contours of that domain).
43. See, e.g., Charles Fried, Order and Law: Arguing the Reagan Revolution-A Firsthand Account 66-67 (1991) (arguing that traditional techniques of legal reasoning are substantially constraining).
44. See Samuel Williston, Some Modern Tendencies in the Law 154 (1929) (defending deductive reasoning as a part of legal decisions).
45. See Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 40-41 (1983) (discussing the use of conceptual order and formality in the classical legal system).
46. See Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 40-41 (1983) (discussing the use of conceptual order and formality in the classical legal system).
47. See Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 40-41 (1983) (discussing the use of conceptual order and formality in the classical legal system).
48. See, e.g., Steven J. Burton, An Introduction to Law and Legal Reasoning 25 (2d ed. 1995) (explaining analogical reasoning in the common law).
49. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
50. Ronald Dworkin, Taking Rights Seriously 31-39, 68-71 (1977).
51. Ronald Dworkin, Justice in Robes 41-43 (2006) [hereinafter Dworkin, Justice in Robes].
52. Ronald Dworkin, Justice in Robes 41-43 (2006) [hereinafter Dworkin, Justice in Robes].
53. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
54. François Gény, Method of Interpretation and Sources of Private Positive Law (Jaro Mayda trans., 2d ed. 1963) (1919).
55. See Marie-Claire Belleau, The "Juristes Inquiets": Legal Classicism and Criticism in Early Twentieth-Century France, 1997 Utah L. Rev. 379, 393-94 (distinguishing Gény as critical of traditionalists who elevated legal constructs to the level of objective reality).
56. James E. Herget & Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 Va. L. Rev. 399 (1987).
57. James E. Herget & Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 Va. L. Rev. 399 (1987).
58. Oliver Wendell Holmes, Jr., The Common Law 1 (Mark D. Howe ed., Harv. Univ. Press 1963) (1st ed. 1881).
59. This is not the occasion for extended analysis of legal technical meaning, but it is worth emphasizing that plain meaning is not necessarily ordinary meaning. There can be technical meanings widely understood in a specialized domain by members of a linguistic (sub)community. In that case the meanings would be plain, albeit technical. "Meson" has a plain meaning for physicists, and "gesso" for painters, although such terms do not appear in ordinary language. And the same holds true for law, where the plain meanings of "habeas corpus, " "quantum meruit, " "tying arrangement, " "curtesy, " and "interrogatory" are no part of ordinary language. On the relationship between ordinary and technical language in general, see Charles E. Caton, Introduction, in Philosophy and Ordinary Language v, vii-xi (Charles E. Caton ed., 1963).
60. This is not the occasion for extended analysis of legal technical meaning, but it is worth emphasizing that plain meaning is not necessarily ordinary meaning. There can be technical meanings widely understood in a specialized domain by members of a linguistic (sub)community. In that case the meanings would be plain, albeit technical. "Meson" has a plain meaning for physicists, and "gesso" for painters, although such terms do not appear in ordinary language. And the same holds true for law, where the plain meanings of "habeas corpus, " "quantum meruit, " "tying arrangement, " "curtesy, " and "interrogatory" are no part of ordinary language. On the relationship between ordinary and technical language in general, see Charles E. Caton, Introduction, in Philosophy and Ordinary Language v, vii-xi (Charles E. Caton ed., 1963).
61. Brian Leiter, Legal Formalism and Legal Realism: What Is the Issue?, 16 Legal Theory 111, 112 (2010) (stressing that Realism challenges even sophisticated versions of formalist accounts of adjudication).
62. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1233 (1992) (same).
63. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
64. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
65. See, e.g., Saul Brenner & Harold Spaeth, Stare Indecisis: The Alteration of Precedent on the U.S. Supreme Court, 1946-1992 (1995) (finding precedent less important than ideological attitudes in explaining Justices' votes).
66. "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. " U.S. Const. amend. XXII, § 1.
67. "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. " U.S. Const. amend. XXII, § 1.
68. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
69. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
70. Brian Leiter, Legal Formalism and Legal Realism: What Is the Issue?, 16 Legal Theory 111, 112 (2010) (stressing that Realism challenges even sophisticated versions of formalist accounts of adjudication).
71. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
72. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
73. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
74. See, e.g., Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 Cornell L.Q. 274, 284 (1929) (describing the fact-based nature of a judge's initial reaction to a case).
75. See Grant Gilmore, The Ages of American Law 80-81 (1977) (describing the particularism of Wesley Sturges).
76. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
77. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
78. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
79. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
80. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
81. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
82. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
83. Kansas even makes it quasi-official. Kan. Stat. Ann. § 8-1560d (2010). On the divergence between posted and real speed limits as exemplifying the gap between law on the books and law in action, see Albert W. Alschuler, The Descending Trail: Holmes' Path of the Law One Hundred Years Later, 49 Fla. L. Rev. 353, 367-68 (1997) (noting a five-mile-per-hour divergence).
84. Robert E. King & Cass R. Sunstein, Doing Without Speed Limits, 79 B.U. L. Rev. 155 (1999).
85. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
86. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
87. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
88. Robert E. King & Cass R. Sunstein, Doing Without Speed Limits, 79 B.U. L. Rev. 155 (1999).
89. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
90. Bernard Wolfman et al., Dissent Without Opinion: The Behavior of Justice William O. Douglas in Federal Tax Cases (1975).
91. 15 U.S.C. §§ 77a-i (2010).
92. See 17 C.F.R. § 230.461 (2012) (allowing for acceleration of the effective date of registration by written request).
93. See Jennifer H. Arlen & William J. Carney, Vicarious Liability for Fraud on Securities Markets: Theory and Evidence, 1992 U. Ill. L. Rev. 691, 711 n.94 (describing non-acceleration where indemnification is guaranteed).
94. 354 U.S. 467 (1964).
95. Note, for example, the fact that libel insurers often ask applicants about the extent of prepublication legal review. For an example, see New England Newspaper & Press Ass'n, Newspaper Publisher Liability Insurance Application for Coverage 2 (2008), available at http://issisvs.com/nenpa/nenpa_inter_app.pdf at 2.
96. 465 U.S. 330 (1984).
97. 465 U.S. 330 (1984).
98. See Christopher Banthin, Cheap Smokes: State and Federal Responses to Tobacco Tax Evasion over the Internet, 14 Health Matrix 325, 335 (2004) (arguing that practical and legal obstacles to enforcement inhibit collection of use taxes on out-of-state purchases).
99. And elsewhere. Those fond of legal examples from sports and games may recognize the exact phenomenon under discussion in the so-called phantom tag in baseball, where umpires genuinely internalize and apply a rule about tagging a runner that differs from the rule on the books. So too with the former distinction between American and National League strike zones, a distinction nowhere to be found in the official rules of baseball. See David W. Rainey & Janet D. Larsen, Balls, Strikes, and Norms: Rule Violations and Normative Rules Among Baseball Umpires, 10 J. Sport & Exercise Psych. 75, 77, 79 (1988) (stating that umpires routinely called the strike zone more than two inches lower than the definition in the official rules in spite of the fact that 94% of those surveyed knew the official definition).
100. Bernard Wolfman et al., Dissent Without Opinion: The Behavior of Justice William O. Douglas in Federal Tax Cases (1975).
101. At least on the assumption that the United States is an especially nonformal legal environment. See P.S. Atiyah & Robert S. Summers, Form and Substance in AngloAmerican Law (1987) (maintaining that the American legal system is more substantive than formal).
102. See Aharon Barak, Purposive Interpretation in Law 88 (Sari Bashi trans., 2005) (defining purposive interpretation and arguing for its pervasive use).
103. See James J. Brudney, Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court, 85 Wash. U. L. Rev. 1 passim (2007) (contrasting American and British uses of legislative proceedings in statutory interpretation).
104. See Caleb Nelson, Statutory Interpretation 108-226 (2011) (surveying and explaining traditional canons of statutory interpretation); 2A Norman J. Singer & J.D. Shambie Singer, Sutherland's Statutes and Statutory Construction § 45:13 (7th ed. 2007) (providing an introduction to canons and aids of statutory construction).
105. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
106. Bernard Wolfman et al., Dissent Without Opinion: The Behavior of Justice William O. Douglas in Federal Tax Cases (1975).
107. See Neil Duxbury, Patterns of American Jurisprudence 93-97 (1995) (summarizing realism in the social sciences and its influence on Legal Realism).
108. See Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 256-57 (1997) (noting the connection between Realism and the modern attitudinalist model of judicial decision making)
109. On the distinction between the logic of decision and the logic of justification, see Richard A. Wasserstrom, The Judicial Decision 26-31 (1961).
110. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
111. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
112. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
113. Although Llewellyn had his particularistic and fact-and case-specific moments (see, e.g., Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 59-61, 121-25, 206-08 (1969) (discussing "Situation-Sense").
114. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
115. Ronald Dworkin, Justice in Robes 41-43 (2006) [hereinafter Dworkin, Justice in Robes].
116. H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases for criticism, H.L.A. Hart, The Concept of Law 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
117. Corey R. Chivers, Desuetude, Due Process, and the Scarlet Letter Revisited, 1992 Utah L. Rev. 449, 451 (noting that the doctrine of desuetude voids a statute).
118. See Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984) (rejecting as unconstitutionally protectionist Hawaii's understandable attempt to assist the pineapple wine industry by exempting it from otherwise applicable taxes).
119. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
120. See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 137-38 (2009) (limiting the Realist challenge to hard cases).
121. E.g., United States v. Locke, 471 U.S. 84, 96 (1985) (enforcing the exact literal meaning of a "prior to December 31" filing deadline).
122. E.g., Ring v. Arizona, 536 U.S. 584, 613 (2002).
123. Ronald Dworkin, Justice in Robes 41-43 (2006) [hereinafter Dworkin, Justice in Robes].
124. Ronald Dworkin, Justice in Robes 41-43 (2006) [hereinafter Dworkin, Justice in Robes].
125. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (stressing the importance of "[t]he prophecies of what the courts will do in fact").
126. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (stressing the importance of "[t]he prophecies of what the courts will do in fact").
127. Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979) (discussing the effects of divorce law on formal and informal bargaining between the parties occurring outside of the courtroom).