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1. Check Mike Check Sound Circulate Attendance Time

2. Today’s Lecture: • Sociological Jurisprudence • Why Realism Happened • What is Sociological Jurisprudence?

3. Lecture Organization: • Class Announcements • Review • How the Realists Came to Be • Law as Growth Science? An Introduction to Sociological Jurisprudence • Brown v. Board of Education • Other Examples of Sociological Jurisprudence Time

4. Time Class Announcements Next Quiz -- Postponed Until This Friday -- Deadline to submit questions is today Next Cases Craig v. Boren McCleskeyv. Kemp Daubert v. Merrell Dow Pharmaceuticals Reading on Homosexuality (just summarize it) (Can do only one) Questions?

5. Review The Arrival of Holmes Rebellion against classical legal thought • -- Judging had more to do with policy intuition than it did anything found in self-contained legal reasoning • -- Outcomes are not predestined or deduced; Judges are simply following their policy intuition • -- all that law ever was, was dominant opinion in the culture • -- The judge should be respecting this opinion unless the Constitution clearly would not allow it

6. Review The great conundrum, once again • -- Is judging special? Was American constitutionalism misguided? • -- What are these judges supposed to do? • -- How are judges supposed to judge? • -- When is something unconstitutional?

7. Holmes and Humpty Dumpty

8. “law”

9. Three Approaches Emerge Holmes Explosion Sociological Jurisprudence (Progressive Determinism) Positivism Skepticism Domination of American Legal Culture

10. How the Realists Came to Be The Realists • Legal Academics in 1920s: • A. Karl Llewellyn • B. Roscoe Pound • The Realists made no philosophic contribution that was different from Holmes, except that SOME of them developed a new school of thought. • -- offshoot caused by “realism” or the realist problem

11. (1881 -1935) Holmes (1900 -1935) The Realists Realist Beliefs: 1. “law” is good social policy 2. “law” is made, not found 3. “law” is not self-contained 4. tend toward a faith in legislative policy organs

12. How the Realists Came to Be Two Important Cultural Developments • In order to understand what will happen to American jurisprudence in the 1900s, it is necessary to understand two important cultural developments that occur in the late 1800s and early 1900s. • Labor Reform • Direct Election of Senators • Women Voting • Regulation of trusts and financial goliaths that had been birthed in the late 1800s • In general, activist and regulatory government (creation of the administrative state) [explain] • Failure of laissez-faire and the great depression Progressivism • -- America transforming from an agricultural to industrial society. • -- Reform movements arise to try to make laws fit the new world • (for example)

13. How the Realists Came to Be Two Important Cultural Developments Empiricism “scientific positivism” • -- The idea emerged in the late 1800s that science was best understood as an empirical rather than logical pursuit • (you will remember that people had been trying to call moral reasoning and law a “science”) • -- Basic idea: things that are true by the 5 senses are sort of more important than things contemplative or reflective (for example) • (science is more important for knowledge than philosophy)

14. How the Realists Came to Be • Basic ideas from this influence: • 1. The Scientific Method (verification of hypotheses) • 2. Logic is not helpful unless it is informed; mathematics not helpful unless it is put to use • Theory of evolution (because there are bones in the ground) • derive conclusions from evidence, not a priori. • 4. Empirical science is sort of the King -- the best kind of knowledge you can have is from empiricism. • 5. Later on in the 1900s, you can understand human behavior by watching it, studying it (behaviorism). Two Important Cultural Developments Empiricism “scientific positivism” • -- The idea emerged in the late 1800s that science was best understood as an empirical rather than logical pursuit • (you will remember that people had been trying to call moral reasoning and law a “science”) • -- Basic idea: things that are true by the 5 senses are sort of more important than things contemplative or reflective (for example) • (science is more important for knowledge than philosophy) Notice the title of the course: American Judicial Behaviorism

15. How the Realists Came to Be Two Important Cultural Developments Empiricism “scientific positivism” Universities • -- Education begins to change in the late 1800s. Before around 1860, there were no such things a laboratories in college • -- laboratories first emerged in educational institutions in Germany • -- This will begin to be exported to America roughly speaking after the Civil War • (Johns Hopkins is the first research-oriented college?)

16. (1881 -1935) Political Progressivism Holmes (1900 -1935) The Realists Scientific Empiricism

17. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” • -- The political assembly is a superior policy organ • -- Since all that “law” is, is intelligent policy making, the Courts are structurally inferior at doing it Question: Why?

18. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” • -- They were structured better than Courts to get at “policy facts.” • Could get all the interests, pro and con, together in the legislative branch and hammer out something that worked. • Could deal with problems comprehensively or semi comprehensively

19. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” • -- They entered office with mandates and had policy constituencies who could battle in a democratic ritual • -- Once in office, you could access them with your needs (call them on the phone, wine and dine, lobby, contribute. Etc.)

20. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: • -- comprehensive regulatory enactments • the tax code • UCC (Uniform Commercial Code) • criminal codes (crimes no longer based upon common law) • banking, securities and exchange, selling insurance – everything is now regulated by a legislative code. Could you imagine what it would be like to determine tax law via common law decision making, one case at a time?

21. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: • -- to see the problem, consider these social problems: Health Care Regulation of Air Travel Safety of Food Conditions of Labor Answer: It is inefficient & the done in the blind (court lacks real expertise, tries to do it using some moral reasoning) Question: What are the problems with trying to write policy in these areas using common law method?

22. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” Era of Legislative Codes: • -- it is much easier to take pro and con interest groups, put them into a legislative arena, and let policy reflect a political solution between antagonistic stakeholders • (political science calls this “pluralism”)

23. How the Realists Came to Be Two Important Notions Emerge “The Deference Principle” Era of the Administrative State • -- This is also the century when the administrative state arrives • government bureaus like EPA, FDA, OSHA, FCC, FTC, SSA, etc., etc. • (talk more about this later when we talk about positivism) • THE POINT: the deference principle held that the center of policy life should be the political assembly, not the courts

24. How the Realists Came to Be Two Important Notions Emerge “Policy logic is fact-based” • -- You want to know what the best policy is? Study it. • -- Being policy wise is no longer logic-based, it is fact based. It is about social utility • -- You gather the data and make a conclusion that suits it • -- This is what good policy making is Question: What should be done about the Iraq war? Question: At what level should interest rates be?

25. Law as a Growth Science? An Introduction to Sociological Jurisprudence Introduction • “Sociological Jurisprudence” is a school of thought about how judges should decide cases • It arose OUT OF the realists movement • Not all realists came to advocate this, but some did • I think the biggest proponent was Roscoe Pound. • This school of thought is going to influence American legal culture, but only slightly • Frankly, it is really going to be a bit of a fad. • We are going to dispose of it first before going on to the rest of the story (get it out of the way)

26. Law as a Growth Science? An Introduction to Sociological Jurisprudence Basic Idea • Inasmuch as there is a new epistemology out there that favors empiricism, why not simply incorporate that into what legal culture says is proper judging? • If it is true that facts are king, judging can still be objective • Instead of judging being a sort of self-contained logic, perhaps it is an effort to find the best factually-based policy. Retains a sense of objectivity to it Judging can still be “special” if it retains objectivity This is a possible way to save Humpty

27. Important Distinction “growth science” “hard science” • Anthropology • Sociology • Psychology • Calculus • Physics • Chemistry Question: What is the difference between these two pursuits?

28. Important Distinction “growth science” “hard science” • Anthropology • Sociology • Psychology • Calculus • Physics • Chemistry 1. probable answers 2. empirical (look science) 3. more paradigmatic, “competitive knowledge” 4. truth changes with time (with more knowledge). 1. certain answers? 2. more mathematical? 3. central, dominant paradigm (e.g., big bang) 4. less disruption “Cumulative Science”

29. The Way to Save Humpty …. “law”

30. Important Distinction “growth science” “hard science” “Law” is a growth science! • Anthropology • Sociology • Psychology • Calculus • Physics • Chemistry “Law” is a science like sociology or anthropology 1. probable answers 2. empirical (look science) 3. more paradigmatic, “competitive knowledge” 4. truth changes with time (with more knowledge). 1. certain answers? 2. more mathematical? 3. central, dominant paradigm (e.g., big bang) 4. less disruption “Law” is a kind of policy science! “Cumulative Science”

31. Important Distinction “growth science” Note: • Anthropology • Sociology • Psychology -- I do not like the name sociological jurisprudence -- Therefore, I have taken the liberty to re-name it. 1. probable answers 2. empirical (look science) 3. more paradigmatic, “competitive knowledge” 4. truth changes with time (with more knowledge). Progressive Determinism Classical Determinism Judging has correct answers But the answers are probabilistic in nature Found through empirical social science Judging has one right answer Certainly known Self-contained logic “Cumulative Science”

32. Law as a Growth Science? An Introduction to Sociological Jurisprudence Muller v. Oregon • Women working overtime case Brandeis Brief • -- 113 pages long • -- only 2 pages of legal authority • -- cites all sorts of studies attempting to show why women working overtime causes extremely poor policy consequences and why the “new age legislation” is factually smart • -- the citations are to social science studies, hence the name “sociological jurisprudence”

33. Law as a Growth Science? An Introduction to Sociological Jurisprudence Muller v. Oregon Brandeis Brief • -- The Court did not rely upon the brief much in its decision; the opinion seemed more “old school” in style • Link. (if enough time)

34. Brown v. Board of Education Facts: • -- Trying to desegregate public schools Context • -- Plessy v. Ferguson • –- the Equal Protection clause is satisfied when states intentionally castigate on the basis of race, so long as there are “separate but equal” facilities Answer: The very decision to separate creates a stigma – it makes someone feel psychological harm Question: Let’s imagine a hypothetical world where facilities really were separate but equal. (Take time to imagine it). What would be wrong with that? Question: What is the law of the land before Brown v. Board of Education is decided? Question: What is this case about?

35. Brown v. Board of Education The Ruling • -- The equal protection clause cannot be satisfied by having separate but equal facilities –- not even if the facilities were made equal. • -- “separate but equal” can never be equal. Question: What does the Court rely upon to make its decision? How does it reach its conclusion? Question: How does the Court rule in the case?

36. Brown v. Board of Education Doll Studies • -- The plaintiffs in the case introduced studies performed by a researcher Kenneth Clark. • -- He gave school children black and white dolls to play with • -- The kids in African-American schools more often selected white dolls to play with instead of black ones, and indicated that they were the “better dolls” • -- The point: the act of segregation was a formally-enforced social stigma that left an impression on children that they were not good enough to be in the “normal” places.

37. Brown v. Board of Education The decision’s logic • -- The decision’s logic is extremely simple both in structure and in what it asserts • -- in fact it is syllogistic (let’s look)

38. Meet the New Boss 1. The Law says that everyone gets equal protection 2. Education is important 3. segregation causes psychological injury True! Legal Starting point Factual A priori True! Key Empirical Premise! How does the judge know if this is true??

39. Warren's Opinion “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language [347 U.S. 483, 495]   in Plessy v. Ferguson contrary to this finding is rejected.” K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of [347 U.S. 483, 495]   Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

40. Meet the New Boss 1. The Law says that everyone gets equal protection 2. Education is important 3. segregation causes psychological injury 4. therefore, segregation is not equal True! Legal Starting point Factual A priori True! True! Key Empirical Premise! Conclusion follows logically

41. Brown v. Board of Education Comparing the two kinds of “logic” • -- Note that Marshall’s syllogisms did not have to look at the world 1. const. is supreme law 2. statutes are “smaller” law 3. courts interpret law 4. you can’t do (3) if you ignore (1) 5. therefore, courts interpret the constitution

42. Brown v. Board of Education Comparing the two kinds of “logic” • -- Note that this is true even when he asserted an anthropological premise! • 1. “Excessives” have degrees • 2. Necessary can mean absolutely necessary or something much less than this • 3. The phrase “necessary and proper” only means reasonable: • A. It is in a power-conferring section of the document • B. Somewhere else, they wrote the phrase “absolutely necessary” • C. The alternative interpretation doesn’t work Technically, you need either cultural anthropology to declare something a colloquialism or at least some sort of semantic authority. But Marshall gets there with “logic,” sort of being a solver of clues

43. Brown v. Board of Education Comparing the two kinds of “logic” • -- Warren’s syllogism is different. • -- You have to go out and LOOK AT THE WORLD. Someone has to collect scientific evidence of some sort Equality in theory v. equality in fact Answer: It is indeed a use of natural law, but a more progressive and sophisticated version. Note that as human knowledge progresses, so do the forms of natural law. God, nature, reason, science, and now empiricism. Answer: It is not legal information, yet it makes law theoretically correct. It is some “epistemological toy” that the judge accesses in order to make law pure, good, correct, true, objective and beautiful Answer: As I have defined it, the answer is “yes.” It is extra textual authority. It is something that the formally-articulated rule would have taken into account had it known of this information. • -- Note that separate but equal is an abstract notion. You have to close your eyes and invent it. That’s all it is; equality in THEORY. It’s a formalistic kind of equality. An equality in the forms. • -- But equality in fact demands that you test your theory. Did it work? Are people equal. Take a pulse. Take evidence. Question: What is the relationship of this school of thought to natural law, as I have defined it. Is progressive determinism a form of natural law?

44. Other Examples of Sociological Jurisprudence Your take-home exam/paper • You are going to apply all of the schools of judging that I teach you • We have to start practicing this • Let’s take some examples …

45. Examples of Sociological Jurisprudence: 1. Speed Trap. 2. Gay Marriage. 3. War on Terror (domestic spying)

46. Examples of Sociological Jurisprudence: 1. Speed Trap. 2. Gay Marriage. 3. War on Terror (domestic spying)

47. Examples of Sociological Jurisprudence: 1. Speed Trap. 2. Gay Marriage. 3. War on Terror (domestic spying)