Legal Realism was a reaction against a formalistic view of law that saw judges as simply applying precise rules to facts. Legal Realists argued that law is what courts actually do rather than predefined rules. They pointed to cases like Bailey v. Bailey in Ohio where the court ignored the plain meaning of a statute to count spousal support as income. While aiming to take a pragmatic view, Legal Realism was criticized for giving a distorted view of judicial reasoning and failing to distinguish between a judge's role and other influences on decisions.

1. Legal Realism
Don Hubin
Copyright © 2003 by Donald C. Hubin

2. Background
• Legal Realism was a distinctly
American approach to philosophy of
law.
• It was an attempt to take a hard-
headed, cold-eyed look at how the legal
system actually operates.
• It was a reaction to a formalistic account
of law and “mechanical jurisprudence.”

3. Mechanical Jurisprudence
• Viewed law as a complex system of set and
precise rules created by the legislature.
• Viewed the role of judges to be simply
determining which rules applied to the facts of
the case.
• Legal Realists saw this as a distorted picture
of law and of the role of courts in a legal
system.

4. Inspiration for Legal Realism
• “Nay, whoever hath
an absolute authority
to interpret any
written or spoken
laws it is he who is
the lawgiver to all
intents and purposes
and not the person
who first wrote or
spake them.”
Bishop Benjamin Hoadly
1676-1761

5. Early Legal Realists
• “"The prophecies of what
the courts will do in fact,
and nothing more
pretentious, are what I
mean by law.“
Oliver Wendell
Holmes, Jr.
1841 -1935

6. The Nature of Legal Realism
• Law is not a species of rules.
– Some deny the reality of legal rules
– All deny the importance of rules in
understanding the law as it is actually
applied.
– Legal Realism has sometimes been called
“Rule Skepticism”
• Law is what courts do.

7. Two Versions of Legal Realism
• Extreme (Unqualified) Legal Realism
– Denies the existence of any legal rules,
including:
• Rules regulating behavior
• Rules empowering people or defining legal offices
• Moderate (Qualified) Legal Realism
– Denies the existence of legal rules regulating
behavior but not the existence of all legal
rules empowering people or defining legal
offices.

8. Extreme Legal Realism
• Criticism:
– This form if legal realism is incoherent
because an adequate analysis of a court
requires reference to the legal rules that
create the court and define its powers and
limitations.
• Trying to define ‘court’ in a de facto manner would
encounter all the problems Austin had in his
definition of ‘sovereign’.

9. Moderate Legal Realism
• Motivation
– An Ohio Case to Illustrate
• Criticisms

10. Statutes and Court Behavior:
A Case Study in the Motivation
for Legal Realism
• Until recently (2001), Ohio law defined ‘gross income’ for
purposes of determining child support as follows:
– “Gross income” means, except as excluded in this
division, the total of all earned and unearned income from
all sources during a calendar year, whether or not the
income is taxable, and includes, but is not limited to,
income from salaries, wages...spousal support actually
received from a person not a party to the support
proceeding for which actual gross income is being
determined, and all other sources of income; … self-
generated income; and potential cash flow from any
source. (R.C. 3113.215(A)(2), emphases added to
original.)

11. The Bailey Decision
• [Bailey v. Bailey (September 22, 1992),
Franklin App. No. 92AP-446, unreported,
1992 Ohio App. LEXIS 4900]
• Question: “Is spousal support paid from a
person who is a party to this child support
action income to the recipient?”

12. The Bailey Decision
• Statute clearly defines ‘gross income’
so as to include the amount of spousal
support received from a party to the
child support action.
• But the court held otherwise.

13. The Bailey Decision
• But, the Bailey Court determined that spousal support paid from one
party to a child support action to another is not income to the recipient
for purposes of calculating child support.
“R.C. 3113.215(A)(2) defines gross income to include spousal support
actually received from a person not a party to the support proceeding for
which actual gross income is being determined. Therefore spousal
support is not income to [when received from a person who is a party to
the child support action].”
• The Bailey court went on to “reason” that since the spousal support
was not income to the recipient in these cases, it had to be counted in
the income of the parent who paid the spousal support despite the fact
that the statute later specifically exempts any court ordered payments
from the definition of ‘gross income’.

14. The Fallacy of the Bailey Decision
• The fact that the statute specifically includes
in gross income spousal support paid from a
former spouse who is not a party to the child
support action does not entail that gross
income does not include spousal support paid
from a former spouse who is a party to the
action—especially when the statute
specifically says that this definition “includes
but is not limited to” the things items
specified.

15. The Absurdity of the
Bailey Decision
• The Bailey decision ignored the realities
of income and based child support
levels on a fiction.
– Example: Pat and Terry

16. The Bailey Decision and
Legal Realism
• What was the law in Ohio between
1992 and 2001 (when Bailey was
overturned by legislative action)?
– The Classical Legal Positivist Answer
– The Legal Realist’s Answer

17. Classical Legal
Positivist’s Answer
• The prevailing legal theory early in the 20th
Century would hold that the law in Ohio at
that time required that spousal support
actually received from a party to the child
support action be counted as part of the
recipient’s gross income. This is the plain
meaning of the language in the statute.

18. Legal Realist’s Answer
• “Get real man! The law isn’t what’s written in a dusty
old law book. The law is that the courts are doing.
For this period, the law in Ohio was that spousal
support paid to a party in a child support action does
not count as income to recipient and does count as
income to the payer. Saying otherwise is not being
realistic.”
– If you were an attorney for either of the parties in this
situation, what would—and what should—you advise your
client is the “law” in Ohio?
– If you are a party in such a case, what would you want to
know about the “law” in Ohio?

19. Moderate Legal Realism
• Criticisms
– Too Broad: There are predictions of what
the courts will do and (official) actions of
courts that are not law.
– Gives a Distorted Picture of Judicial
Reasoning
– Gives a Distorted Picture of the Judge’s
Role in the Legal System

20. Too Broad
• This account can’t distinguish between
legal decisions and procedural rulings—
even mundane procedural rulings like
the decision to recess.
– Note that procedural rulings are decisions
made in the judge’s official capacity.

21. Distortion of Judicial Reasoning
• Judicial deliberations (at least at the
highest level) become deliberations
about what the judge will decide.
– “What is legally correct?” means “What will
I decide?”

22. Distortion of Judicial Reasoning:
Statutes as “Sources of Law”
• Statutes are considered mere “sources
of law” because they, in fact, influence
judges’ decisions.
– If the judge’s dreams, love life or
hemorrhoids influence her/his decision,
then these things have the same legal
status as statutes.

23. Distortion of Judicial Reasoning
• This view does not allow for the concept
of a decision being made on legally
irrelevant grounds.
– Example: Ohio judge who was deciding
cases by flipping a coin.

24. Distortion of Judge’s Role
• Legal Realism fails to distinguish
between finality and infallibility.
– Example: football v. “scorer’s discretion”