Today in torts class, I taught Palsgraf, the classic duty/proximate cause case that illustrates the difference between Justice Cardozo’s somewhat formalist bent and Justice Andrews’s stark legal realism. I told my class that everyone falls along the spectrum somewhere from the most process-based, almost transcendental formalist to the most practical politics legal realist. Here’s a quiz I created last year to determine where you fall.
Assign a numeric value to each question.
5 = Strongly agree
4 = Agree
3 = Neutral
2 = Disagree
1 = Strongly disagree
- The life of the law is not logic, but experience.
- Law is not a science; you cannot just apply a formula and divine the right answer.
- Legal reasoning is not inherently self-justified; we have to look elsewhere (to sociology, political science, philosophy) to give legal concepts meaning.
- There is no such thing as a neutral, objective assessment of the law.
- The state action doctrine makes no conceptual sense; it is designed to oppress the disadvantaged and maintain our current power structures.
- When a court flagrantly violates precedent to do what it knows to be right (and I agree with that conception of right), I feel happy.
Down by a 9, you’re quite the formalist (that is my score – although that’s what I got last year and may have moved more realist this year. [Edit: I am now an 11].). The highest scores I’ve seen are in the mid to high 20s.
Readers’ comments about the quiz added after the jump:
Many quiz takers have made excellent comments and suggestions about the quiz that are worth noting.
First, there is some slippage between whether someone is realist descriptively (i.e. thinks the courts are more realist) or realist normatively (i.e. thinks that’s the right way to be). Part of the reason for this conflation is that my hypothesis is that the two are correlated. So question four, for example, is part descriptive part aspirational. But if one thinks that pure neutrality is impossible, but should be attempted as best as possible, question four doesn’t yield a clear answer. I am somewhat in that position, and I gave myself a 1 for that question, if it helps. The question deserves better wording.
Similarly, the “flagrantly” in question six may indicate my biases and may impact how people answer the question (there’s some realism for you). What I mean is that a court clearly and unabashedly (no judgment intended) disregards precedent.
Other excellent objections have been lodged by those so far into the realism side that they reject the quiz entirely, because they reject the concept of precedent as distinct from a conception of the good/right, or they reject the distinction between logic and experience (one formalist also found them not mutually exclusive). Hyper realists who reject the quiz should likely just give themselves fives for many questions, or I have plotted their answers (on the spectrum I am maintaining) as above everyone else and incomplete.
Sometimes objections also come from linguists (and formalists) who believe the law can be objective, but not neutral, or who believe the law is amenable to some scientific methods but is not science, or who believe legal reasoning is self-justified because it bases its principles on knowledge from elsewhere. Of course, some of the fun of a quiz is having to figure out a way to package one’s views into neater boxes and make difficult decisions about priorities when issues are presented as binary.