Real Realists

Llewellyn

What, then, are the characteristics of these new fermenters? One thing is clear. There is no school of realists. There is no likelihood that there will be such a school. There is no group with an official or accepted, or even with an emerging creed. There is no abnegation of independent striking out. We hope that there may never be. New recruits acquire tools and stimulus, not masters, nor over-mastering ideas. Old recruits diverge in interests from each other. They are related, says Frank, only in their negations, and in their skepticisms, and in their curiosity.

There is, however, a movement in thought and work about law. The movement, the method of attack, is wider than the number of its adherents. It includes some or much work of many men who would scorn ascription to its banner. Individual men, then. Men more or less interstimulated-but no more than all of them have been stimulated by the orthodox tradition, or by that ferment at the opening of the century in which Dean Pound took a leading part. Individual men, working and thinking over law and its place in society. Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell. Their number grows. Their work finds acceptance.

What one does find as he observes them is twofold. First (and to be expected) certain points of departure are common to them all. Second (and this, when one can find neither school nor striking likenesses among individuals, is startling) a cross-relevance, a complementing, an interlocking of their varied results “as if they were guided by an invisible hand.” A third thing may be mentioned in passing: a fighting faith in their methods of attack on legal problems; but in these last years the battle with the facts has proved so much more exciting than any battle with traditionalism that the fighting faith had come (until the spring offensive of 1931 against the realists) to manifest itself chiefly in enthusiastic labor to get on.

But as with a description of an economic order, tone and color of description must vary with the point of view of the reporter. No other one of the men would set the picture up as I shall. Such a report must thus be individual. Each man, of necessity, orients the whole to his own main interest of the moment-as I shall orient the whole to mine : the workings of case-law in appellate courts. Maps of the United States prepared respectively by a political geographer and a student of climate would show some resemblance; each would show a coherent picture; but neither’s map would give much satisfaction to the other. So here. I speak for myself of that movement which in its sum is realism; I do not speak of “the realists”; still less do I speak for the participants or any of them. And I shall endeavor to keep in mind as I go that the justification for grouping these men together lies not in that they are alike in belief or work, but in that from certain common points of departure they have branched into lines of work which seem to be building themselves into a whole, a whole planned by none, foreseen by none, and (it may well be) not yet adequately grasped by any.

The common points of departure are several.

(1) The conception of law in flux, of moving law, and of judicial creation of law.

(2) The conception of law as a means to social ends and not as an end in itself; so that any part needs constantly to be examined for its purpose, and for its effect, and to be judged in the light of both and of their relation to each other.

(3) The conception of society in flux, and in flux typically faster than the law, so that the probability is always given that any portion of law needs reexamination to determine how far it fits the society it purports to serve.

(4) The temporary divorce of Is and Ought for purposes of study. By this I mean that whereas value judgments must always be appealed to in order to set objectives for inquiry, yet during the inquiry itself into what Is, the observation, the description, and the establishment of relations between the things described are to remain as largely as possible uncontaminated by the desires of the observer or by what he wishes might be or thinks ought (ethically) to be. More particularly, this involves during the study of what courts are doing the effort to disregard the question what they ought to do. Such divorce of Is and Ought is, of course, not conceived as permanent. To men who begin with a suspicion that change is needed, a permanent divorce would be impossible. The argument is simply that no judgment of what Ought to be done in the future with respect to any part of law can be intelligently made without knowing objectively, as far as possible, what that part of law is now doing. And realists believe that experience shows the intrusion of Ought-spectacles during the investigation of the facts to make it very difficult to see what is being done. On the Ought side this means an insistence on informed evaluations instead of armchair speculations. Its full implications on the side of Is-investigation can be appreciated only when one follows the contributions to objective description in business law and practice made by realists whose social philosophy rejects many of the accepted foundations of the existing economic order. (E.g., Handler re trade-marks and advertising; Klaus re marketing and banking; Llewellyn re sales; Moore rebanking; Patterson re riskbearing.)

(5) Distrust of traditional legal rules and concepts insofar as they purport to describe what either courts or people are actually doing. Hence the constant emphasis on rules as “generalized predictions of what courts will do.” This is much more widespread as yet than its counterpart: the careful severance of rules for doing (precepts) from rules of doing (practices).

(6) Hand in hand with this distrust of traditional rules (on the descriptive side) goes a distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions. This involves the tentative adoption [better : exploration] of the theory of rationalization for [what light it can give in] the study of opinions. It will be noted that “distrust” in this and the preceding point is not at all equivalent to “negation in any given instance.”

(7) The belief in the worthwhileness of grouping cases and legal situations into narrower categories than has been the practice in the past. This is connected with the distrust of verbally simple rules-which so often cover dissimilar and non-simple fact situations (dissimilarity being tested partly by the way cases come out, and partly by the observer’s judgment as to how they ought to come out; but a realist tries to indicate explicitly which criterion he is applying in any particular instance).

(8) An insistence on evaluation of any part of law in terms of its effects, and an insistence on the worthwhileness of trying to find these effects.

(9) Insistence on sustained and programmatic attack on the problems of law along any of these lines. None of the ideas set forth in this list is new. Each can be matched from somewhere; each can be matched from recent orthodox work in law. New twists and combinations do appear here and there. What is as novel as it is vital is for a goodly number of men to pick up ideas which have been expressed and dropped, used for an hour and dropped, played with from time to time and dropped-to pick up such ideas and set about consistently, persistently, insistently to carry them through. Grant that the idea or point of view is familiar – the results of steady, sustained, systematic work with it are not familiar. Not hit-or-miss stuff, not the insight which flashes and is forgotten, but sustained effort to force an old insight into its full bearing, to exploit it to the point where it laps over upon an apparently inconsistent insight, to explore their bearing on each other by the test of fact. This urge, in law, is quite new enough over the last decades to excuse a touch of frenzy amongthe locust-eaters.

The first,second, third and fifth of the above items, while common to the workers of the newer movement, are not peculiar to them. But the other items (4, 6, 7, 8, and 9) are to me the characteristic marks of the movement. Men or work fitting those specifications are to me “realistic” whatever label they may wear. Such, and none other, are the perfect fauna of this new land. Not all the work cited below fits my peculiar definition in all points. All such work fits most of the points.

Bound, as all “innovators” are, by prior thinking, these innovating “realists” brought their batteries to bear in first instance on the work of appellate courts. Still wholly within the tradition of our law, they strove to improve on that tradition.

1. An early and fruitful line of attack borrowed from psychology the concept ofrationalization already mentioned. To recanvass the opinions, viewing them no longer as mirroring the process of deciding cases, but rather as trained lawyers’ arguments made by the judges (after the decision has been reached), intended to make the decision seem plausible, legally decent, legally right, to make it seem, indeed, legally inevitable-this was to open up new vision. It was assumed that the deductive logic of opinions need by no means be either adescription of the process of decision, or anexplanation of how the decision had been reached. Indeed over-enthusiasm has at times assumed that the logic of the opinioncould be neither; and similar over-enthusiasm, perceiving case after case in which the opinion is clearly almost valueless as an indication of how that case came to decision, has worked at times almost as if the opinion were equally valueless in predicting what a later court will do.But the line of inquiry via rationalization has come close to demonstrating that in any case doubtful enough to make litigation respectable the available authoritative premises-i.e., premises legitimate and impeccable under the traditional legal techniques -are at least two, and that the two are mutually contradictory as applied to the case in hand. Which opens the question of what made the court select the one available premise rather than the other. And which raises the greatest of doubts as to how far any supposed certainty in decision which may derive merely [or even chiefly] from the presence of accepted rules really goes.
2. A second line of attack has been to discriminate among rules with reference to their relative significance. Too much is written and thought about “law” and “rules,” lump-wise. Which part of law? Which rule? Iron rules of policy, and rules “in the absence of agreement”; rules which keep a case from the jury, and rules as to the etiquette of instructions necessary to make a verdict stick – if one can get it; rules “of pure decision” for hospital cases, and rules which counsellors rely on in their counselling: rules which affect many (and which many, and how.) and rules which affect few. Such discriminations affect the traditional law curriculum, the traditional organization of law books and, above all, the orientation of study: to drive into the most important fields of ignorance.
3. A further line of attack on the apparent conflict and uncertainty among the decisions in appellate courts has been to seek more understandable statement of them by grouping the facts in new-and typically but not always narrower-categories. The search is for correlations of fact-situation and outcome which (aided by common sense) may reveal when courts seize on one rather than another of the available competing premises. One may even stumble on the trail of why they do. Perhaps, e.g., third party beneficiary difficulties simply fail to get applied to promises to make provision for dependents; perhaps the pre-existing duty rule goes by the board when the agreement is one for a marriage-settlement. Perhaps, indeed, contracts in what we may broadly call family relations do not work out in general as they do in business. If so, the rules – viewed as statements of the course of judicial behavior – as predictions of what will happen – need to be restated. Sometimes it is a question of carving out hitherto unnoticed exceptions. But sometimes the results force the worker to reclassify an area altogether. Typically, as stated, the classes of situations which result are narrower, much narrower than the traditional classes. The process is in essence the orthodox technique of making distinctions, and reformulating-but undertaken systematically; exploited consciously, instead of being reserved until facts which refuse to be twisted by “interpretation” force action. The departure from orthodox procedure lies chiefly in distrust of, instead of search for, the widest sweep of generalization words permit. Not that such sweeping generalizations are not desired-if they can be made so as to state what judges do [or ought to do.]

All of these three earliest lines of attack converge to a single conclusion: there is less possibility of accurate prediction of what courts will do than the traditional rules would lead us to suppose (and what possibility there is must be found in good measure outside these same traditional rules). The particular kind of certainty that men have thus far thought to find in law is in good measure an illusion. Realistic workers have sometimes insisted on this truth so hard that they have been thought pleased with it. (The danger lies close, for one thinking indiscriminately of Is and Ought, to suspect announcements of fact to reflect preferences, ethically normative judgments, on the part of those who do the announcing.)

But announcements of fact are not appraisals of worth. The contrary holds. The immediate results of the preliminary work thus far described has been a further, varied series of endeavors; the focussing of conscious attack on discovering the factors thus far unpredictable, in good part with a view to their control. Not wholly with a view to such elimination; part of the conscious attack is directed to finding where and when and how far uncertainty has value. Much of what has been taken as insistence on the exclusive significance of the particular (with supposed implicit denial of the existence of valid or apposite generalizations) represents in fact a clearing of the ground for such attack. Close study of particular unpredictables may lessen unpredictability. It may increase the value of what remains. It certainly makes clearer what the present situation is. “Link by link is chainmail made.”

9. There is the question of the personality of the judge. (Little has as yet been attempted in study of the jury; Frank, Law and the Modern Mind, makes a beginning.) Within this field, again, attempts diverge. Some have attempted study of the particular judge – a line that will certainly lead to inquiry into his social conditioning. Some have attempted to bring various psychological hypotheses to bear. All that has become clear is that our government is not a government of laws, but one of law through men.

(ii) There has been some attempt to work out the varieties of interaction between the traditional concepts (the judge’s “legal” equipment for thinking, seeing, judging) and the fact-pressures of the cases. This is a question not – as above – of getting at results on particular facts, but of studying the effect, e.g., of a series of cases in which the facts either press successively in the one direction, or alternate in their pressures and counteract each other. Closely related in substance, but wholly diverse in both method and aim, is study of the machinery by which fact-pressures can under our procedure be brought to bear upon the court.

(iii) First efforts have been made to capitalize the wealth of our reported cases to make large-scale quantitative studies of facts and outcome; the hope has been that these might develop lines of prediction more sure, or at least capable of adding further certainty to the predictions based as hitherto on intensive study of smaller bodies of cases. This represents a more ambitious development of the procedure described above, under (c); I know of no pubresults. [Here the recent University of Chicagstudies need attention.]

(iv) Repeated effort has been made to work with the cases of single states, to see how far additional predictability might thus be gained.

(v) Study has been attempted of “substantive rules” in the particular light of the available remedial procedure; the hope being to discover in the court’s unmentioned knowledge of the immediate consequences of this rule or that, in the case at hand, a motivation for decision which cuts deeper than any shown by the opinion. Related, but distinct, is the reassertion of the fundamental quality of remedy, and the general approach to restating “what the law is” (on the side of prediction) in terms not of rights, but of what can be done: Not only “no remedy, no right,” but “precisely as much right as remedy.”

(vi) The set-up of men’s ways and practices and ideas on the subject matter of the controversy has been studied, in the hope that this might yield a further or even final basis for prediction. The work here ranges from more or less indefinite reference to custom (the historical school), or mores (Corbin), through rough or more careful canvassess of business practice and ideology (e.g, Berle, Sturges, Isaacs, Handler, Bogert, Durfee and Duffy, Breckenridge, Turner, Douglas, Shanks, Oliphant and indeed Holmes) to painstaking and detailed studies in which practice is much more considered than is any prevailing set of ideas about what the practices are (Klaus) or – even – to studies in which the concept of “practice” is itself broken up into behavior-sequences presented with careful note of the degree of their frequency and recurrence, and in which all reference to actor’ s own ideas is deprecated or excluded (Moore and Sussman). While grouped here together, under one formula, these workers show differences in degree and manner of interest in the background-ways which range from one pole to the other. Corbin’s main interest is the appellate case; most of the second group mentioned rely on semi-special information and readily available material from economics, sociology, etc., with occasional careful studies of their own, and carry a strong interest into drafting or counselling work; Klaus insists on full canvass of all relevant literature, buttressed by and viewed in the light of intensive personal investigation; Moore’s canvass and study is so original and thorough in technique as to offer as vital and important a contribution to ethnology and sociology as to banking practice. This is not one ” school”; here alone are the germs of many “schools.”

(vii) Another line of attack, hardly begun, is that on the effect of the lawyer on the outcome of cases, as an element in prediction. The lawyer in litigation has been the subject thus far only of desultory comment. Groping approach has been made to the counsellor as field general, in the business field: in drafting, and in counselling (and so in the building of practices and professional understandings which influence court action later), and in the strategy of presenting cases in favorable series, settling the unfavorable cases, etc.

All of the above has focussed on how to tell what appellate courts will do, however far afield any new scent may have led the individual hunter. But the interest in effects on laymen of what the courts will do leads rapidly from this still respectably traditional sphere of legal discussion into a series of further inquiries whose legal decorum is more dubious. They soon extend far beyond what has in recent years been conceived (in regard to the developed state) as law at all. I can not stop to consider these inquiries in detail. Space presses. Each of the following phases could be, and should be, elaborated at least into such a rough sketch as the foregoing. Through each would continue to run interest in what actually eventuates; interest in accurate description of what evenuates; interest in attempting, where prediction becomes uncertain, some conscious attack on hidden factors whose study might lessen the uncertainty; and interest in effects-on laymen. Finally, insistence that Ought-judgment should be bottomed on knowledge. And that action should be bottomed on all the knowledge that can be got in time to act.

9. There is first the question of what lower courts and especially trial courts are doing, and what relation their doing has to the sayings and doings of upper courts and legislatures.

Here the question has been to begin to find out, to find some way, some ways, of getting the hitherto unavailable facts, to find some significant way or ways of classifying what business is done, how long it takes, how various parts of the procedural machinery work. (E.g., Warner, Sunderland, Millar, Clark, Yntema, Marshall, Oliphant, Douglas, Arnold, Morgan, Frankfurter, Greene, and Swazie.) Another attack begins by inquiry not into records, but into the processes of trial and their effects on the outcome of cases. (Frank, Green.) This, on the civil side, where we have (save for memoirs) been wholly in the dark. On the criminal side, beginnings lie further back. (Pound, Frankfurter, Moley and the Crime Surveys; where lawyers have drawn on the criminologists.) All that is really clear to date is that until we know more here our “rules” give us no remote suggestion of what law means to persons in the lower income brackets, and give us misleading suggestions as to the whole body of cases unappealed. Meantime, the techniques of the social sciences are being drawn upon and modified to make the work possible.

II. There is the question of administrative bodies – not merely on the side of administrative law (itself a novel concept recently enough)-but including all the action which state officials take “under the law” so far as it proves to affect people. And with this we begin departing from the orthodox. To be sure, the practicing lawyer today knows his commission as he knows his court. But the trail thus broken leads into the wilds of government, and politics, and queer events in both.

III. There is the question of legislative regulation – in terms of what it means in action, and to whom, not merely in terms of what it says. And with that, the question of what goes into producing legislative change-or blocking it especially so far as the profession participates therein; legislative history on the official record; but as well the background of fact and interest and need. And, no less vital, there is the fact-inquiry into areas of life where maladjustment capable of legal remedy exists.

IV. Finally, and cutting now completely beyond the traditionbounded area of law, there is the matter not of describing or predicting the action of officials – be they appellate courts, trial courts, legislators, administrators – but of describing and predicting the effects of their action on the laymen of the community. “Law” without effect approaches zero in its meaning. To be ignorant of its effect is to be ignorant of its meaning. To know its effect without study of the persons whom it affects is impossible. Here the antecedents of court action touch its results. To know law, then, to know anything of what is necessary to judge or evaluate law, we must proceed into these areas which have traditionally been conceived (save by the historical school) as not-law. Not only what courts do instead of what courts say, but also what difference it makes to anybody that they do it. And no sooner does one begin such a study than it becomes clear that there can be no broad talk of “law” nor of “the community”; but that it is a question of reaching the particular part of the community relevant to some particular part of law. There are persons sought to be affected, and persons not sought to be affected. Of the former, some are not in fact materially affected (the gangster-feud); of the latter, some are (depositors in a failing bank which the bank laws have not controlled). There is the range of questions as to those legal “helpful devices” (corporation, contract, lease) designed to make it easier for men to get where they want and what they want. There is all the information sociscientists have gathered to be explored, in its bearings on the law.There is all the information they have not been interested in gathering, likewise to be explored-but, first, to be gathered.

Here are the matters one or another of the new fermenters is ploughing into. Even the sketchy citations here are enough to make clear that their lines of work organize curiously into a whole.

But again rises the query: are the matters new? What realist knows so little of law or the ways of human thought as to make such a claim? Which of the inquiries has not been made, or started, or adumbrated, in the past? Which of the techniques does not rest on our prior culture? New, I repeat, is one thing only: the systematic effort to carry one problem through, to carry a succession of problems through, toconsistently, not occasionally, choose the best available technique, to consistently keep description on the descriptive level, to consistently distinguish the fact basis which will feed evaluation from the evaluation which it will later feed, to consistently seek all the relevant data one can find to add to the haphazard single-life experience, to add to general common sense [-so as, in possible due course, to produce that uncommon sense we know as horse-sense.]

Is it not obvious that – if this be realism – realism is a mass of trends in legal work and thinking? (1) They have their common core, present to some extent wherever realistic work is done: recognition of law as means; recognition of change in society that may call for change in law; interest in what happens; interest in effects; recognition of the need for effort toward keeping perception of the facts uncolored by one’s views on Ought; a distrust of the received set of rules and concepts as adequate indications of what is happening in the courts; a drive toward narrowing the categories of description. (2) They have grown out of the study of the action of appellate courts, and that study still remains their potent stimulus. Uncertainty in the action of such courts is one main problem: to find the why of it; to find means to reduce it, where it needs reduction; to find where it needs reduction, where expansion. (3) But into the work of lower courts, of administrative bodies, of legislatures, of the life which lies before and behind “law,” the ferment of investigation spreads.

Some one or other of these realistic trends takes up the whole time of many; a hundred more participate in them to various degrees who yet would scorn the appellation “realist.” The trends are centered in no man, in no coherent group. There is no leader. Spokesmen are self-appointed. They speak not for the whole but for the work each is himself concerned with – at times with little or no thought of the whole, at times with the exaggeration of controversy or innovation. Yet who should know better than lawyers the exaggeration of controversy; who should have more skill than they to limit argument and dictum to the particular issue, to read it in the light thereof. One will find, reading thus, little said by realistic spokesmen that does not warrant careful pondering. Indeed, on careful pondering, one will find little of exaggeration in their writing. Meantime, the proof of the pudding: are there results?

There are. They are results, primarily, on the side of the descriptive sociology of law discussed thus far. They are big with meaning for attack on the field of Ought-either on what courts ought to do with existing rules, or on what changes in rules are called for.

Already we have a series, lengthening impressively, of more accurate reformulations of what appellate courts are doing and may be expected to do. We are making headway in seeing (not just “knowing” without inquiry) what effects their doing has on some of the persons interested. We are accumulating some knowledge (i.e., more than guesses) on phases of our life as to which our law seems out of joint.

We have, moreover, a first attack upon the realm of the unpredictable in the actions of [appellate] courts. That attack suggests strongly that one large element in the now incalculable consists in the traditional pretense or belief (sometimes the one, sometimes the other) that there is no such area of uncertainty, or that it is much smaller than it is. To recognize that there are limits to the certainty sought by words and deduction, to seek to define those limits, is to open the door to that other and far more useful judicial procedure: conscious seeking, within the limits laid down by precedent and statute, for the wise decision. Decisions thus reached, within those limits, may fairly be hoped to be more certainly predictable than decisions are now – for today no man can tell when the court will, and when it will not, thus seek the wise decision, but hide the seeking under words. And not only more certain, but what is no whit less important: more just and wise (or more frequently just and wise).

Indeed, the most fascinating result of the realistic effort appears as one returns from trial court or the ways of laymen to the tradition-hallowed problem of appellate case-law. Criticized by those who refuse to disentangle Is and Ought because of their supposed deliberate neglect of the normative aspect of law, the realists prove the value, for the normative, of temporarily putting the normative aside. They return from their excursion into the purest description they can manage with a demonstration that the field of free play for Ought in appellate courts is vastly wider than traditional Ought-bound thinking ever had made clear. This, within the confines of precedent as we have it, within the limits and on the basis of our present order. Let me summarize the points of the brief:

1. If deduction does not solve cases, but only shows the effect of a given premise; and if there is available a competing but equally authoritative premise that leads to a different conclusion – then there is a choice in the case; a choice to be justified; a choice which can be justified only as a question of policy – for the authoritative tradition speaks with a forked tongue.
2. If (i) the possible inductions from one case or a series of cases – even if those cases really had each a single fixed meaning – are nonetheless not single, but many; and if (ii) the standard authoritative techniques of dealing with precedent range for limiting the case to its narrowest issue on facts and procedure, and even searching the record for a hidden distinguishing fact, all the way to giving it the widest meaning the rule expressed will allow, or even thrusting under it a principle which was not announced in the opinion at all – then the available leeway in interpretation of precedent is (relatively to what the older tradition has consciously conceived) nothing less than huge. And only policy considerations and the facing of policy considerations can justify “interpreting” (making, shaping, drawing conclusions from) the relevant body of precedent in one way or in another. And – the essence of all – stare decisis has in the past been, now is, and must continue to be, a norm of change, and a means of change, as well as a norm of staying put, and a means of staying put. The growth of the past has been achieved by “standing on” the decided cases; rarely by overturning them. Let this be recognized, and precedent is clearly seen to be a way of change as well as a way of refusing to change. Let that, in turn, be recognized, and that peculiar one of the ways of working with precedent which consists in blinding the eyes to policy loses the fictitious sanctity with which it is now enveloped some of the time: to wit, whenever judges for any reason do not wish to look at policy.
3. If the classification of raw facts is largely an arbitrary [better: creative] process, raw facts having in most doubtful cases the possibility of ready classification along various lines, then “certainty,” even under pure deductive thinking, has not the meaning that people who have wanted certainty in law are looking for. The quest of this unreal certainty, this certainty unattained in result, is the major reason for one self-denyinordinance of judges: their refusal to look beyond words to things. Let them once sethat the “certainty” thus achieved is uncertainty for the non-law-tutored layman in his living and dealing, and the way is open to reach for layman’s certainty-through-law, by seeking for the fair or wise outcome, so far as precedent and statute make such outcome possible. To see the problem thus is also to open the way to conscious discrimination, e.g, between current commercial dealings on the one hand and real estate conveyancing or corporate indenture drafting on the other. In the latter thelawyer’s peculiar reliance on formulae may be assumed as of course; whereas in the former cause needs to be shown for making such an assumption.

Thus, as various of the self-designated realistic spokesmen have been shouting: the temporary divorce of Is and Ought brings to the reunion a sharper eye, a fuller equipment, a sounder judgment – even a wider opportunity as to that case-law which traclition has painted as peculiarly ridden by the past. That on the fact side, as to the particular questions studied, the temporary divorce yields no less gratifying results is demonstrated by the literature.

When the matter of program in the normative aspect is raised, the answer is: there is none. A likeness of method in approaching Ought-questions is apparent. If there be, beyond that, general lines of fairly wide agreement, they are hardly specific enough to mean anything on any given issue. Partly, this derives from differences in temperament and outlook. Partly, it derives from the total lack of organization or desire to schoolify among the men concerned. But partly, it is due to the range of work involved. Business lawyers have some pet Oughts, each in the material he has become familiar with; torts lawyers have the like in torts; public lawyers in public law. And so it goes. Partly also, the lack of programmatic agreement derives from the time and effort consumed in getting at facts, either the facts strictly legal or the “foreign” facts bearing on the law. Specialized interest must alone spell absence of group-program. Yet some general points of view may be hazarded.

(1) There is fairly general agreement on the importance of personnel, and of court organization, as essential to making laws have meaning. This both as to triers of fact and as to triers of law. There is some tendency, too, to urge specialization of tribunals.

(2) There is very general agreement on the need for courts to face squarely the policy questions in their cases, and use the full freedom precedent affords in working toward conclusions that seem indicated. There is fairly general agreement that effects of rules, so far as known, should be taken account og in making or remaking the rules. There is fairly general agreement that we need improved machinery for making the facts about such effects – or about needs and conditions to be affected by a decision – available to courts.

(3) There is a strong tendency to think it wiser [for purposes of initial inquiry] to narrow rather than to widen the categories in which concepts and rules either about judging or for judging are made.

(4) There is a strong tendency to approach most legal problems as problems in allocation of risks, and so far as possible, as problems of their reduction, and so to insist on the effects of rules on parties who not only are not in court, but are not fairly represented by the parties who are in court. To approach not only tort but business matters, in a word, as matters of general policy.

And so I close as I began. What is there novel here? In the ideas, nothing. In the sustained attempt to make one or another of them fruitfull, much. In the narrowness of fact-category together with the wide range of fact-inquiry, much. In the techniques availed of, much – for lawyers. But let this be noted – for the summary above runs so largely to the purely descriptive side : When writers of realistic inclination are writing in general, they are bound to stress the need of more accurate description, of Is and not of Ought. There lies the common ground of their thinking; there lies the area of new and puzzling development. There lies the point of discrimination which they must drive home. To get perspective on their stand about ethically normative matters one must pick up the work of each man in his special field of work. There one will find no lack of interest or effort toward improvement in the law. As to whether change is called for, on any given point of law, and if so, how much change, and in what direction, there is no agreement. Why should there be? A group philosopy or program, a group credo of social welfare, these realists have not. They are not a group.