In our February 2019 post, Professor Jessie Allen uses performance theory and empirical research from psychology on the effects of reading to suggest a new approach to thinking about legal indeterminacy. This approach pushes us to think of other ways that doctrine might matter beyond determining outcomes. Building squarely on Nourse and Shaffer’s writing on New Legal Realism, Professor Allen demonstrates how serious attention to doctrine can also fit with realist and empirical approaches to studying how law works.
A New Realist Approach to Doctrinal Reasoning
Jessie Allen
Judges continue to act and write as if legal doctrine determines their rulings. Yet doctrinal indeterminacy has long been recognized as a paradigmatic legal trait. As Mrs. Dollop in George Eliot’s nineteenth-century novel Middlemarch observes, “It’s well known there’s always two sides, if no more; else who’d go to law I should like to know”? In the 1930s, the (original) Realists pointed out that doctrinal indeterminacy raises conceptual and moral problems. If judges’ decisions are not really driven by doctrine, then articulating them in doctrinal terms looks like a kind of judicial fraud or fantasy. What justifies enforcing those decisions with state violence if they are not mandated by authoritative legal sources? If there is no justification, what accounts for doctrinal reasoning’s remarkable resilience?
Nearly 100 years since the Realists’ critique, these questions remain unanswered. Doctrinal defenders contend that indeterminate legal authorities somehow combine with judges’ policy choices to produce authentically legal decisions, but never explain exactly how that works. Skeptics dismiss judges’ doctrinal language as an ideological smokescreen, but the practice persists. Notably, both doctrinal defenders and critics share a central assumption, namely, that legal doctrine matters only to the extent it determines substantive legal answers. In a recently published article, “Doctrinal Reasoning as a Disruptive Practice” in the Journal of Law and Courts (2018) (SSRN version), I propose a different approach – one in keeping with New Legal Realism’s project of understanding how legal forms might contribute to law’s “particular kind of power” (Nourse and Shaffer 2009, 123).
Rather than a way to identify substantively correct legal answers or a way to hide the absence of such answers, I consider doctrinal reasoning as a cultural practice that might affect the minds of its practitioners. My hypothesis is that without directing substantive results, doctrinal reasoning might be a way for legal decision makers to distance themselves from their own usual outlooks. In other words, the process of engaging in doctrinal reasoning might cause judges to view legal problems differently than they otherwise would, not because they absorb and follow the substance of legal doctrine but because of their interaction with doctrinal forms. Think of this as a literal, practice-oriented way to satisfy the rule-of-law requirement that legal decision makers look outside themselves and identify legal answers through engagement with formal legal authorities. Even if the legal doctrine they consult is substantively indeterminate, going through the prescribed formal motions could affect the way judges see things. Looking to “the known laws and customs of the land” could still be a way for a judge to avoid deciding just “according to his own private judgment” (Blackstone, 1765-69, I:69).
In most theories of adjudication, turning away from one’s ordinary point of view is figured as an epiphenomenal effect of following legal rules to their substantive conclusions. But occasionally this turning away comes to the foreground. For instance, Frederick Schauer observes that “the characteristic modes of legal reasoning” all share the “special oddness” of aiming at “reaching a decision other than the best all-things-considered decision for the matter at hand” (2009, 7). Performance theory is useful for illuminating this aspect of legal reasoning, because changes in one’s subjective outlook and behavior are a central feature of performance. As Richard Schechner puts it, performance is “’me behaving as if I am someone else’ or ‘as if I am ‘beside myself’ or ‘not myself’ . . . . But this ‘someone else’ may also be ‘me in another state of feeling/being,’ as if there were multiple ‘me’s’ in each person” (1985, 37). Access to a performance persona who is both “not me” and “not not me,” is achieved in various ways, but a key technique involves adopting physical and/or vocal alterations. For example, an actor might change the way she holds her jaw or sits in a chair. It turns out that these sorts of subtle changes can have ripple effects that alter a performer’s ways of experiencing the world. She finds herself hearing and seeing things differently and so behaving differently in response. Perhaps judges’ engagement with the peculiar forms of legal doctrine can produce responses comparable to what actors experience when they adopt uncharacteristic gestures, postures, and ways of speaking. When judges read, write, think and speak in the patterns of doctrinal reasoning, those unusual behavioral patterns might elicit changes in their ways of seeing and reacting to the world.
I have had this intuition about a similarity between performance and doctrinal reasoning for a long time, but until recently I worried that what judges did when they reasoned doctrinally simply was not physical enough to support the comparison. Some aspects of formal legal process are undeniably embodied performance, most obviously public trials. But much of judges’ reasoning develops through private thought, as well as reading and writing, which, as the novelist Rachel Cusk observes, are generally seen as such “non-physical transactions” that they “might almost be said to represent a mutual escape from the actual body” (2017, 115). Unsurprisingly, then, any acknowledgement that legal reasoning is an embodied activity tends to focus on how that embodiment corrupts objective rationality. Jerome Frank famously snarked that judicial results had less to do with legal rules than what the judge had for breakfast, and at least one empirical study apparently confirms that judges’ rulings are affected by their stomachs, finding that petitioners were less likely to be granted parole when their cases came up close to the mid-day lunch break. (Danziger, Levav and Avnaim-Pesso 2011). In this framework, it was hard to justify my sense that the embodied aspect of judicial reasoning might somehow contribute to legal outcomes in a positive way.
Then I came upon some studies purporting to show that reading short passages from different forms of literature elicits changes in readers’ psychology (Kidd and Castano, 2013). Crucially, the observed changes are not understood to result from readers absorbing substantive information, but rather from engaging with different literary forms (Djikic and Oatley 2014). After seeing the reader studies, I began to reflect that (as every new law student soon realizes) engaging with the unusually dense, peculiar forms of doctrinal language requires a rigorous perceptual choreography. From this perspective, it is possible to see how the psycho-physical effects of reading, writing, thinking and talking in doctrinal forms might disrupt judges’ ordinary subjective viewpoints, just as adopting uncharacteristic physical gestures disrupts performers’ habitual emotional responses.
Of course, even if engaging in formal doctrinal reasoning tends to shift judges away from their ordinary subjective responses, that would not tell us how judges ultimately choose, or should choose, legal outcomes. In this sense, my disruptive account of doctrinal reasoning is a very modest theory. Moreover, it is a wholly speculative theory. I have no empirical evidence that the process of engaging with indeterminate doctrine somehow distances judges from their usual subjective outlooks. Still, the theory may be worth investigating empirically. My article suggests a few possible approaches, and I would welcome discussion from empiricists on possible methodological approaches and obstacles.
The larger point, I think, is that it is possible to envision ways that legal doctrine could contribute to legality, even when it is substantively indeterminate. The disruptive effect I describe may or may not be verifiable empirically. What seems more important is the theoretical argument that substantively indeterminate legal doctrine still can be legally significant. That strikes me as a New Legal Realist argument, because it accepts the Realist critique of legal indeterminacy without “simply reject[ing] law’s formal qualities as meaningless” (Nourse and Shaffer 2009, 125). If, like me, you buy the Realist claim that in many (if not most, or all) adjudicated cases available doctrinal authorities can justify more than one outcome, that leaves a gaping question about why continued doctrinal practice isn’t just bad faith or totally beside the point. My paper shows that it is at least theoretically possible for indeterminate doctrine to authentically contribute to a decision making practice in which judges’ engagement with doctrinal authorities produces decisions that are different from what the judges would produce if left to their own devices.
References
Blackstone, William. 1765-69. Commentaries on the Laws of England.
Cusk, Rachel. 2016. Transit. New York: Farrar, Strauss, Giroux.
Danziger, Shai, Jonathan Levav and Liora Avnaim-Pesso. 2011. “Extraneous Factors in Judicial Decisions.” Proceedings of the National Academy of Sciences 108: 6889-92.
Djikic, Maja and Keith Oatley. 2014. “The Art in Fiction: From Indirect Communication to Changes of the Self.” Psychology of Aesthetics, Creativity and the Arts 8: 498-505.
Kidd, David Comer and Emanuele Castano. 2013. “Reading Literary Fiction Improves Theory of Mind.” Science 342:377-80.
Nourse, Victoria and Gregory Shaffer. 2009. “Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?” Cornell Law Review 95:61-137.
Schauer, Frederick. 2009. Thinking Like a Lawyer: A New Introduction to Legal Reasoning. Cambridge, MA: Harvard University Press.
Schechner, Richard. 1985. Between Theater & Anthropology. Philadelphia: University of Pennsylvania Press.