Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P29 ppt

school’s admission policy did not violate the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT because there was a “compelling interest in obtaining the educational benefits that flow from a diverse student body.” FURTHER READINGS Alexander, Stacy, et a1. 1999. Legal Education for the 21st Century. Edited by Donald B. King. Littleton, Colo.: F. B. Rothman. Cooper, Byron D. 2002. “The Integration of Theory, Doctrine, and Practice in Legal Education.” Erasing Lines: Journal of the Association of Legal Writing Directors 1 (October): 50 –64. Drachman, Virginia G. 1998. Sisters in Law: Women Lawyers in Modern American History. Cambridge, Mass.: Harvard Univ. Press. Gee, E. Gordon, and Donald W. Jackson. 1977. “Bridging the Gap: Legal Education and Lawyer Competency.” Brigham Young University Law Review 1977. Katz, Barry E. 2002. “A Degree of Specialization.” Student Lawyer 31 (December): 22–26. “Narrow Use of Affirmative Action Preserved in College Admissions.” June 25, 2003. CNN.com: Law Center. Available online at www.cnn.com/2003/LAW/06/23/ scotus.affirmative.action (accessed October 3, 2009). Rose, Jonathan. 1994. “The MacCrate Report’s Restatement of Legal Education: The Need for Reflection and Horse Sense.” Journal of Legal Education 44 (December). Schwartz, Bernard. 1974. The American Heritage History of the Law in America. New York: American Heritage. White, James Boyd. 1999. From Expectation to Experience: Essays on Law and Legal Education. Ann Arbor: Univ. of Michigan Press. CROSS REFE RENCES Affirmative Action; Case Method; Law School Admission Test; Legal Specialization LEGAL FICTION An assumption that something occurred or someone or something exists which, in fact, is not the case, but that is made in the law to enable a court to equitably resolve a matter before it. In order to do justice, the law will permit or create a LEGAL FICTION. For example, if a person undertakes a renunciation of a legacy which is a gift by will the person will be deemed to have predeceased the testator—one who makes a will—for the purpose of distributing the estate. LEGAL HISTORY The record of past events that deal with the law. Legal History is a discipline that examines events of the past that pertain to all facets of the law. It includes analysis of particular laws, legal institutions, individuals who operate in the legal system, and the effect of law on society. U.S. legal history is a relatively new subtopic that began to grow dramatically in the 1960s. Before the 1960s legal history was confined mostly to biographies of famous lawyers and judges and to technical analysis of particular areas of SUBSTANTIVE LAW. In general it was an afterthought. Political historians made reference to important U.S. Supreme Court cases, but there was little in-depth analysis of topics such as CRIMINAL LAW, the law of SLAVERY,orthe development of the state and federal court systems. The study of U.S. legal history began with the work of James Willard Hurst. In 1950 Hurst published The Growth of American Law: The Law Makers, which examined many types of historical sources in order to fash ion a history of U.S. law. Hurst went beyond the work of judges and courts to find material about the law in constitutional conventions, legislature s, administrative agencies, and the bar. Among his many other works, Hurst explored the relationship of law and the economy in Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (1964). In his scholarship Hurst tried to integrate PUBLIC LAW (law created by government bodies) with PRIVATE LAW (law implemented through public courts to resolve individual disputes). Legal historians who began resear ching and writing in the 1960s typically emphasized one of these types of law. Lawrence M. Friedman emphasized the work of private law in A History of American Law, first published in 1973. In this book Friedman examined, among many topics, the law of contract, real property, and tort. Paul L. Murphy focused on public law, writing a series of articles and books relating the U.S. Constitution to the social and cultural pressures of different historical period s. In World War I and the Origin of Civil Liberties in the United States (1979), Murphy analyzed the relationship between the United States’ experience in war and developing interest in FIRST AMENDMENT civil liberties. The field of legal history also benefited from the growth of social history in the 1960s. The issues of gender, race, and class became crucial to historians during the VIETNAM WAR period. Legal historians such as Kermit L. Hall have built on these issues, interweaving legal history with social and cultural history to explain how GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 268 LEGAL FICTION law is both a reactive mechanism, responding to public problems, and an active mechanism, shaping behavior through its rules and structure. Hall’s The Magic Mirror: Law in American History (1989) was the first major work to synthesize 20 years of social and legal history research into an overview of U.S. law, public and private. Legal historians have looked at the role of law in U.S. history in several disparate ways. Hurst and many other historians have seen the law as a means of enhancing political and economic consensus. Their view is that law acts as a neu tral party through which conflicting interests work to achieve their own ends. Other, more radical historians see law as a formal device for perpetuating the domin ation of the ruling economic class. Their viewpoint emphasizes that law is not the expression of neutral rules but a creature of power and politics. Therefore, those who lack power— including women, members of racial minorities, and people who are poor—have been hurt by the law. The consensus and conflict models of legal historical analysis turn on their positions concerning the principle called the RULE OF LAW . This rule, on which all other legal rules are based, has been a basic principle of Western culture since the seventeenth century. It posits that all persons are equal before a neutral and impartial authority, regardless of economic standing, gender, race, family connection s, or political connections. Legal historians produce scholarship that goes to the question of whether all persons receive justice. The field of legal history continues to grow, with historians now exploring every facet of the law. History is no longer defined as just Supreme Court decisions or congressional legislation. Historians examine the inner work- ings of state courts, frontier law of the nineteenth century, the role of law in slavery, criminal law, legal bias against homosexuality, and more. CROSS REFERENCES Critical Legal Studies; Feminist Jurisprudence; Jurisprudence. LEGAL LIST STATUTES State laws that enumerate the investments into which certain institutions and fiduciaries—those who manage money and property for another and who must exercise a standard of care in such activity in acc ordance with law or contract—can venture. Legal lists are frequently limited to high caliber securities that generate a satisfactory yield with a minim um amount of risk to the principal. LEGAL MALPRACTICE A lawyer is obligated to comply with a code of ethics that is adopted by the state in which the lawyer practices. These rules, typically known as the Model Rules of Ethics, or Ethical Rules, address a lawyer’s conduct in various situations. A lawyer has a duty, in all dealings and relations with a client, to act with honesty, GOOD FAITH, fairness, integrity, and fidelity. He or she must possess the legal skill and knowledge that is ordinarily possessed by members of the profes- sion. A lawyer should not take any action that is improper under these rules or that which even suggests the appearance of impropriety. Even after the lawyer and the client terminate their relationship, a lawyer is not permitted to acquire an interest that is adverse to a client, in the event that this might constitute a breach of the ATTORNEY-CLIENT PRIVILEGE. A lawyer may not use information that he or she obtained from a client as a result of their relationship. For example, it would constitute unethical behavior for an attorney to first advise a client to sell a piece of property so that it would not be included in the client’s PROPERTY SETTLEMENT upon divorce, and then to purchase the property from the client for half of its MARKET VALUE . Any dealings that a lawyer has with a client will be carefully examined. Such dealings require fairness and honesty, and the lawyer must show that no UNDUE INFLUENCE was exercised and that the client received the same benefits and advantages as if he or she had been dealing with a stranger. If the client had independent legal advice about any transaction, that is usually sufficient to meet the lawyer’s burden t o prove fairness. A lawyer also has the duty to provide a client with a full, detailed, and accurate account of all money and property handled for him or her. The client is entitled to receive anything that the lawyer has acquired in violation of his duties to the client. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LEGAL MALPRACTICE 269 If a lawyer fails to promptly pay all funds to his or her client, the lawyer may be required to pay interest. A lawyer is liable for fraud—except when the client caused the attorney to commit fraud—and is generally liable for any damag es resulting to the client by his negligence. In addition, a lawyer is responsible for the acts of associates, clerks, legal assistants, and partners and may be liable for their acts if they result in losses to the client. Negligent errors are most commonly asso- ciated with LEGAL MALPRACTICE. This category is based on the premise that an attorney has committed an error that would have been avoided by a competent attorney who exercises a reasonable standard of care. Lawyers who give improper advice, improperly prepare documents, fail to file documents, or make a faulty analysis in examining the title to real estat e may be charged with malpractice by their clients. A legal malpractice action, however, is not likely to succeed if the lawyer committed an error because an issue of law was unsettled or debatable. Many legal malpractice claims are filed because of lack of communication and negligence in the professional relationship. The improper and unprofessional handling of the attorney-client relationship leads to negligence claims that are not based on the actual services provided. Lawyers who fail to communicate with their clients about the difficulties and realities of the particular claim risk malpractice suits from dissatisfied clients who believe that their lawyer was responsible for losing the case. Another area of legal malpractice involves fee disputes. When attorneys sue clients for their fees, many clients assert malpractice as a defense. As a defense, it can reduce or totally eliminate the lawyer’s recovery of fees. The frequency of these claims is declining, in part perhaps because attorneys are reluctant to sue to recover their fees. A final area of legal malpractice litigation concerns claims that do not involve a deficiency in the quality of the lawyer’s legal services provided to the client, but an injury caused to a THIRD PARTY because of the lawyer’s representation. This category includes tort claims filed against an attorney alleging MALICIOUS PROSECU- TION , ABUSE OF PROCESS, defamation, infliction of emotional distress, and other theories based on the manner in which the attorney represented the client. These suits rarely are successful except for malicious prosecution. Third-party claims also arise from various statutes, such as securities regulations, and motions for sanctions, such as under Rule 11 of the Federal Rules of CIVIL PROCEDURE. Short of filing an actual lawsuit, someone who is unsatisfied with an attorney’s services may file a bar complaint with the state bar in the state where the attorney practices. The bar is then obligated to investigate the matter, and the attorney is obligated to cooperate in the investigation, or he or she will face further sanctions. A bar complaint is considered an extremely serious matter and must be answered even if the attorney believes the compliant is frivolous. The bar has the authority to discipline its attorneys with formal and informal procedures up to and including the authority for disbarment. The procedures for these actions are governed by state law. CROSS REFERENCES Attorney Misconduct; Ethics, Legal; Privileged Communi- cation. LEGAL POSITIVISM A school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and prin ciples that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies. The key to LEGAL POSITIVISM is in understand- ing the way positivists answer the fundamental question of jurisprudence: “What is law?” The word “positivism” itself derives from the Latin root positus, which means to posit, postulate, or firmly affix the existence of something. Legal positivism attempts to define law by firmly affixing its meaning to written decisions made by governmental bodies that are endowed with the legal power to regulate particular areas of society and human conduct. If a principl e, rule, regulation, decision, judgment, or other law is recognized by a duly authorized governmental body or official, then it will qualify as law, according to legal positivists. Conversely, if a behavioral norm is enunciated by anyone or anything other than a duly authorized governmental body or official, the norm will not qualify as law in the minds of legal positivists, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 270 LEGAL POSITIVISM no matter how many people are in the habit of following the norm or how many people take action to legitimize it. Legal positivism is often contrasted with NATURAL LAW. According to the natural law school of jurisprudence, all written laws must be informed by, or made to compo rt with, universal principles of morality, RELIGION, and justice, such that a law that is not fair and just may not rightly be called “law.” For example, persons engaging in peaceful protest through CIVIL DISOBEDIENCE often appeal to a higher natural law in denouncing societal practices that they find objectionable. Legal positivists generally acknowledge the existence and influence of non-legal norms as sources to consult in evaluating human behavior, but they contend that these norms are only aspirational, for persons who contravene them suffer no imme- diate adverse consequences for doing so. By contrast, positivists emphasize that legal norms are binding and enforceable by the POLICE POWER of the government, such that individuals who violate the law may be made to face serious consequences including fine, imprisonment, loss of property, or even death. Legal positivism serves two values. First, by requiring that all law be written, positivism ensures that members of society will be explicitly apprised of their rights and obligations by the government. In a legal system that is run in strict accordance with positivis t tenants, litigants would never be unfairly surprised or burdened by the governmental imposition of an unwritten legal obligation that was previously unknown or non-existent. Second, legal positivism serves to curb judicial discretion. In some cases, judges are not satisfied with the outcome of a case that would be dictated by a narrow reading of existing laws, and they may be tempted to reach a result that is more fair and just. However, lega l positivism requires judges to decide cases in accordance with the law, and not their personal predilections. In this way, positivists believe that the integrity of the law is maintained through a neutral and objective judiciary that is not guided by subjective notions of right and wrong. Not surprisingly, the autonomous and detached nature of legal positivism has been criticized for its harshness. The mere enactment of a law by a political institution, some critics of positivism have argued, does not mean that society should accept all such laws as legitimate and binding. For example, the slave codes enforced by the Confederacy during the Civil War generally contained clearly written rules that systematically deprived African-Americans of their civil liberties, not to mention their human dignity. In Nazi Germany, Adolph Hitler’s regime brutally stripped Jews of any governmental protection through a labyrinth of legal codes. Despite the written nature of these laws, critics of legal positivism argue, such legal systems must not be treated with the same res- pect that is afforded to regimes that genuinely confer fundamental liberty equally upon all persons. Legal positivism, these critics point out, sometimes emasculates the social function of law by preventing it from serving human needs. Thus, these criti cs conclude that written law ceases to be legitimate when it is divorced from principles of fairness, justice, and morality. The American colonists based their revolt against the tyranny of British law precisely upon this point. In fact, the DECLARATION OF INDEPEN- DENCE , by declaring that “all men are created equal … [and] endowed by their Creator with certain inalienable rights”, embodies clear natural law principles. Legal positivism has ancient roots. Chris- tians believe that the Ten Commandments have sacred and pre-eminent value in part because they were inscribed in stone by God, and delivered to Moses on Mount Sinai. When the ancient Greeks intended for a new law to have permanent validity, they inscribed it on stone or wood and displayed it in a public place for all to see. In classical Rome, Emperor Justinian (483–565 a.d.) developed an elaborate system of law that was contained in a detailed and voluminous written CODE. Prior to the American Revolution, English political thinkers JOHN AUSTIN and THOMAS HOBBES articulated the command theory of law, which stood for the proposition that the only legal authorities that courts should recognize are the commands of the sovereign, because only the sovereign is entrusted with the power to enforce its commands with military and police force. The most famous advocate of legal positivism in American history is probably Justice OLIVER WENDELL HOLMES, JR. He wrote that the “prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (O.W. Holmes Jr., The Path of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LEGAL POSITIVISM 271 Law, 10 Harvard LAW REVIEW 457 (1897)). In making this statement, Holmes was suggesting that the meaning of any written law is deter- mined by the individual judges interpreting them, and until a judge has weighed in on a legal issue, the law is ultimately little more than an exercise in trying to guess the way a judge will rule in a case. FURTHER READINGS Allan, James. 2003. “A Modest Proposal. (David Dyzenhaus vs. Matthew Kramer On Legal Positivism.” Oxford Journal of Legal Studies 23, no. 2 (summer). Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=815054; website home page: http://papers.ssrn.com (accessed S eptember 14, 20 09). Himma, Kenneth Einar. 2002. “Situating Dworkin: The Logical Space between Legal Positivism and Natural Law Theory.” Oklahoma City Univ. Law Review 27 (spring). Tamanaha, Brian Z. 2001. “Socio-legal Positivism and a General Jurisprudence.” Oxford Journal of Legal Studies 21 (spring). LEGAL PROCEEDINGS All actions that are authorized or sanctioned by law and instituted in a court or a tribunal for the acquisition of rights or the enforcement of remedies. LEGAL PUBLISHING Legal publishing refers to the production of texts that report laws or discuss the practice of law. Originally limited to printed materials, LEGAL PUBLISHING encompasses electronic media as well, with most legal publications eventua lly becoming available online. The first collections of American laws were published during the seventeenth and eighteenth centuries. Printing presses allowed laws to be printed on a regular basis. Colonists relied on ENGLISH LAW as COMMON LAW, so local laws were not reported until after the American Revolution. Once the colonies gained indepen- dence and formed the United States, the number of lawyers grew, along with the need for a printed record of U.S. laws. The original case reporters were published by individuals without the support of the government. In 1841 Georgia was the first state government to require its judges to write out their decisions. The clerk of the court would send the decisions to the governor, who had the decisions printed and distributed to all of the judges in the state. During the late nineteenth century, John B. West started the National Reporter System. West’s Syllabi contained the full text of decisions of the Supreme Court of Minnesota. The publication was enlarged to include decisions of Wisconsin and eventually became the Northwestern Reporter. West’s company soon expanded to cover decisions across the country. The company took responsibility for making sure that the reports were accurate. It includ ed headnotes for each case, summarizing the issues of law that were discussed in the decision. The decisions were published in parts that were later reprinted in hardbound volumes. Using these advance sheets allowed decisions to be reported more quickly. Other publishers that began reporting decisions in the 1800s included Matthew Bender and Company, Bancroft-Whitney Company, and the Lawyers Cooperative Publishing Com- pany. Lawyers Cooperative Publishing printed selected decisions. Each year, it also printed a volume that reported where original decisions were cited in current decisions. Federal decisions began to be reported in a regular and complete form in the late 1800s. The first volume of American LAW REPORTS was printed in 1919 by the Edward Thompson and Lawyers Cooperative Publishing Companies. With so many decisions being reported, it became difficult to determine the status of a case. Lawyers needed to know whether a case had been overruled or modified. Typ ically, they would mark any modifications to a decision in the margins of their reporters. In 1875, Frank S. Shepard published the Illinois Annotations, which was a series of sheets that could be cut out and pasted in the margins of the book that reported a case. The sticker format was dropped in 1900, and the citator took on its current tabular format. Originally covering only cases, Shepard’scitatorwasexpandedtoinclude citations to the Constit ution, statutes, and court rules. The publication of statutes followed a history similar to that of cases. Individual states printed their own statutes beginning at the end of the eighteenth century. The first commercial effort to publish federal laws occurred in 1902. In 1924, Congress authorized the publication of the U.S. CODE. West Publishing Company and the Edward Thompson Company were hired to assist with the publication. Federal law was divided into individual titles. In the early 2000s, statutes are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 272 LEGAL PROCEEDINGS first published as unedited, uncollated statutes called slip laws. At the end of each session, the statutes are gathered into the U.S. Code. Little, Brown and Company was the first to publish books specifically for students. In 1871 Little, Brown started publishing casebooks for students. Casebooks present leading cases in a particular area of law, with accompanying discussion of the law. In 1880, 11 titles were available. Other common legal publications include practice aids for lawyers, such as form books and practice books. Form books present standard formats for common legal documents. Practice books describe the laws of a particular jurisdiction or practice area and give guidelines on various aspects of the law. Legal periodicals make up another segment of the legal publishing market. These include newspapers and newsletters that report on current law. Within law schools, student-edited law reviews present articles by students, law school faculty, and other faculty. During the 1990s three companies acquired the vast majority of the major legal publishing companies in the United States. In 1997 alone, the costs of these MERGERS AND ACQUISITIONS amounted to about $1 trillion. Many of the companies that were acquired during this time had long histories in the area of legal publishing. The American Association of Law Libraries’ Committee on Relations with Information Vendors (CRIV) maintains lists of the publishing companies that belong to each PARENT COMPANY (see www.aallnet.org/committee/criv/). Thomson Corporation acquired the largest legal publisher, West Publishing Com pany, in 1996. It merged Thomso n Publishing Company and West Publishing Company to form West Group. West Group continued to publish the National Reporter System, the United States Code Annotated, many annotated state statutes, and man y other publications formerly published by West Publishing Company. Other companies acquired by, or merged with, Thomson included Lawyers Cooperative Publishing, Re- search Institute of America, Bancroft-Whitney, Clark Boardman Callaghan, Foundation Press, Rutter Group, Findlaw, Lawoffice.com, and Gale Group. (now part of Cengage Learning.) Reed Elsevier, P.L.C. owned Lexis Law Publishing, which published the United States Code Service and several other legal titles. Reed Elsevier also acquired such companies as Matthew Bender & Co., Mealey Publications, Michie Company, Shepard’s, and Martindale- Hubbell. The companies published a variety of annotated state statutes, other legal practice materials, and Shepard’s Citations. A third company, Wolters Kluwer, owned Aspen Publishers, Inc.; CCH Incorporated; Little, Brown, & Company; and Loislaw. The companies produced a number of sources for law students, including casebooks. CCH Incor- porated published a number of specialized publications focusing, for example, on tax, securities, and copyright. In the early 2000s the legal publishing market included electronic publishing. COMPUTER- ASSISTED LEGAL RESEARCH made it possible to search legal materials online. Thomson’s WESTLAW and Reed Elsevier’s LEXI S/NEXIS were the largest computer-assisted legal research services, which provide access to cases, statutes, rules, law reviews, public records, and a variety of practice guides. In 2000 a new database named HeinOnline emerged, providing sub- scribers with more than 40 million pages of online research material. Although online services such as WEST- LAW, LEXIS/NEXIS, and HeinOnline generally operate on a subscription-basis, a number of Web sites provide free access to a variety of legal materials that include federal and state CASE LAW, codes and regulations, treatises, law reviews, scholarly articles, mainstream news stories, as well as legal forms, public records, and attorney directories. Examples of such Internet sites are Findlaw (www.findlaw.com) and the Legal Information Institute, a site maintained by Cornell Law School (www.law.cornell.edu). FURTHER READINGS American Association of Law Libraries Committee on Relations with Information Vendors. 2003. A Legal Publishers List: Corporate Affiliations of Legal Publishers, 2d ed. Available online at www.aallnet.org/committee/ criv/resources/tools/list (accessed July 8, 2009). Berring, Robert C., Jr. 1994. “Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information.” Washington Law Review 69 (January). Markoff, John. 2004. “Google Plans New Service for Scientists and Scholars.” New York Times. (Nov. 18). Ogden, Patti J. 1983. “‘Mastering the Lawless Science of Our Law’: A Story of Legal Citation.” Law Library Journal 85 (winter). Surrency, Erwin C. 1990. A History of American Law Publishing. Dobbs Ferry, N.Y.: Oceana. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LEGAL PUBLISHING 273 Swygert, Michael I., and Jon W. Bruce. 1985. “The Historical Origins, Founding, and Early Development of Student- edited Law Reviews.” Hastings Law Journal 36 (May). CROSS REFE RENCES Case Law; Century Digest®; Computer-Assisted Legal Research; Court Opinion; Decennial Digest®; Digest; Federal Reporter®; Federal Supplement®; Hornbook; Law Reports; LEXIS®; Shepardizing; Shepard’s® Citations; Statutes at Large; Treatise; U.S. Code; U.S. Code Annotated®; Westlaw® LEGAL REALISM The school of legal philosophy that challenges the orthodox view of U.S. jurisprudence under which law is characterized as an autonomous system of rules and principles that courts can logically apply in an objective fashion to reach a determinate and apolitical judicial decision. Legal realists maintain that common-law adjudication is an inherently subjective system that produces inconsistent and sometimes incoherent results that are largely based on the political, social, and moral predilections of state and federal judges. The U.S. legal realism movement began in 1881 when OLIVER WENDELL HOLMES JR. published The COMMON LAW, an attack on the orthodox view of law. “The life of the law has not been logic,” Holmes wrote, “it has been experience.” Legal realism flourished during the 1920s and 1930s when ROSCOE POUND , a professor from Harvard Law School, and KARL LLEWELLYN,a professor from Yale Law School, published a series of articles debating the nuances of the movement. Although the movement declined after WORLD WAR II, it continues to influence how judges, lawyers, and laypersons think about the law. Legal realism is not a unified collection of thought. Many realists, such as Pound and Llewellyn, were sharply critical of each other and presented irreconcilable theories . Yet five strands of thought predominate in the movement. The strands focus on power and economics in society, the persuasion and characteristics of individual judges, society’s WELFARE, a practical approach to a durable result, and a synthesis of legal philosophies. Power and Economics in Society The first strand is marked by the nihilistic view that law represents the will of society’s most powerful members. This view is articulated by Thrasymachus in Plato’s Republic, when he tells Socrates that in every government “laws are made by the ruling party in its own interest,” and “the ruling element is always the strongest.” When courts speak in terms of what is right and just, Thrasymac hus said, they are speaking “in the interest of those establi shed in power.” Justice Holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the natural outcome of dominant public opinion ( LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). Realists argued that law frequently equates the dominant power in society with pervasive economic interests. During the incipience of the U.S. legal realism movement in the nineteenth century, the United States was transformed from a static agrarian economy into a dynamic industrial market. Realists asserted that U.S. common law facilitated this transformation in a number of ways. Horwitz reported in The Transformation of American Law that when interpreting an insurance contract, one judge remarked in 1802 that courts must not adopt an interpretation that will “embarrass commerce.” Instead, the judge said, courts are at liberty to “adopt such a construction as shall most subserve the solid interests of this growing country.” To help subsidize the growth of a competi- tive economy in the nineteenth century, realists have argued, U.S. judges commonly frowned on claims brought by litigants seeking monopolistic power. For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 a.d. 270 (1805), a downstream landowner asked the New York Supreme Court to grant him the exclusive right to use river water for commercial activity despite any injuries that might result to upstream owners. The court refused to grant such a right because if it did “the public would be deprived of the benefit which always attends competition and rivalry.” In a subsequent case, the New York Supreme Court held that a landowner’srightto enjoy his property could be “modified by the exigencies of the social state” (Losee v. Bucha- nan, 51 N.Y. 476 [1873]). The court added, “We must have factories, machinery, dams, canals and railroads.” At the same time the common law was facilitating economic expansion, realists claimed that it was also helping to increase the number of exploited U.S. citizens. Realists w ere skepti- cal of the traditional description of the U.S. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 274 LEGAL REALISM economy as a free market. They felt that the economy was regula ted by common-law principles that safeguarded the interests of society’s wealthiest members. In support of this conten- tion, realists pointed to landlord-tenant laws that entitled lessors to evict lessees for technical breaches of their lease, labor laws that allowed management to replace striking workers, and contract laws that permitted employers to terminate their workers witho ut justification. The realists’ economic analysis of law spawned two related movements in U.S. jurisprudence that occupy polar extremes on the political spectrum. One is the conservative l aw and economics movement, whose adherents, most prominent of whom is RICHARD POSNER, believe that common-law principles must be interpreted to maximize the aggregate wealth of society without regard to whether such wealth is distributed equally. The other is the liberal CRITICAL LEGAL STUDIES movement, whose adherents, called crits, believe that the law must be utilized to redistribute wealth, power, and liberty so that every citizen is guaranteed a minimum level of dignity and equality. Since the mid-1900s, the crits have focused less on what they perceive as economic exploitation in the law, and more on what they see as political explo i tation. In this regard they have assailed various U.S. courts for advancing the interests of adult, w hite, heterosexual males at the expense of women, blacks, and homo- sexuals. The crits have commonly referenced three cases to corroborate this point: McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), in which the Supreme Court rejected a constitutional challenge to CAPITAL PUNISHMENT despite evidence that African Ameri- can defendants are almost three times more likely than whites to receive the dea th penalty for murdering a white person; Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), in which the Supreme Court ruled that the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT provides less protection against discrimination for women than for members of other minority groups; and Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in which the Supreme Court refused to recognize a constitutional right to engage in SODOMY. However in 2003, the Supreme Court overturned the Bowers holding in LAWRENCE V. TEXAS 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508. The Persuasion and Characteristics of Individual Judges The second strand of realist thought subscribes to the relativistic view that law is nothing more than what a particular court says it is on a given day, and that the outcome to a legal dispute will vary according to the political, cultural, and religious persuasion of the presiding judge. Some realists, such as JEROME N. FRANK, another prominent thinker in U.S. jurisprudence during the 1920s and 1930s, insisted that a judge’s psychological and personality characteristics also sway the judicial decision-making process. Justice BENJAMIN N. CARDOZO of the Supreme Court went so far as to characterize judges as legislators in robes. Thenotionthatjudgeslegislatefromthe bench was a re volutionary idea that flew in the face of orthodox legal thought in the eighteenth and nineteenth centuries. I n The Federalist, no. 78, ALEXANDER HAMILTON enunciated the orthodox position when he said the judiciary is the “least dangerous branch” because it has “ neither force nor will, but merely judgment.” The legislature, Hamilton said, has the power to prescribe the rights and duties by which the country is to be regulated, and the executive has the obligation to enforce Oliver Wendell Holmes Jr. started the legal realism movement when he published his book The Common Law in 1881. RUTGERS UNIVERSITY LIBRARY. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION LEGAL REALISM 275 these laws through the power of the sword. The role of the judiciary, Hamilton wrote, is simply to interpret and apply the laws passed by the other two branches. Hamilton’s view resonated in the opinions of Chief Justice JOHN MARSHALL, who wrote that “courts are the mere instruments of the law, and can will nothing” (Osborn v. Bank of United States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). Judicial power, Marshall said, should never be exercised for the purpose of imple- menting the will of the judge. Instead, courts must exercise their power solely to implement the will of legislators, who, as the elected representatives of the American people, embody the “will of the law.” Hamilton and Marshall both believed that law is an autonomous body of knowledge independent and distinguishable from the personal preferences of the judge applying it, and that it is possible to interpret this body of knowledge in an objective fashion. Adherents to this theory of law are known as formalists. In the nineteenth century, formalists asserted that state and federal law constitute a rational system of rules and principles that judges can apply in a mechanical fashion to reach a clear, certain, and uncontroversial resolution to a legal dispute. Realists, such as Justice Cardozo, questioned the formalists’ assumption that law could be autonomous and objective, or produce demon- strably certain outcomes. In The Nature of the Judicial Process, a groundbrea king book first published in 1921, Cardozo argued that law is a malleable instrument that allows judges to mold amorphous words like reasonable care, unrea- sonable restraint of trade, and due process to justify any outcome they desire. For example, courts are commonly asked to invalidate contracts on the ground that one party exercised duress and UNDUE INFLUENCE in coercing another party to enter an agreement. Cardozo noted that terms such as duress and undue influence are subject to interpretation. He argued that judges who are inclined to shape the law in favor of society’s weaker members will construe them broadly, invalidating many contracts that stem from predatory behavior. On the other hand, judges who are inclined to shape the law in favor of society’s stronger members will construe such words narrowly, allowing particular individuals to benefit from their guile and acumen. Even when language is clear, Cardozo explained, the law often presents courts with competing and contradictory principles to apply and interpret. For example, in Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), the New York Court of Appeals was presented with the question of whether a man could inherit under a will that named him as a beneficiary, even though he had murdered the testator, his grandfather. The lodestar of testamentary interpretation, Cardozo observed, is that courts must interpret a will according to the explicit intentions of the testator. In this case, juxta- posed with this seemingly unequivocal rule was the ancient maxim of equity, “No man shall profit from his own wrong.” Depending on the outcome the court of appeals desired to reach in Riggs, Cardozo concluded, the panel of three judges could have relied on either legal axiom in support of its decision. In fact, the court was divided on the issue, with two judges voting to disinherit the murderous grandson, and the other voting to enforce the will. Society’s Welfare Convinced that common-law principles can be manipulated by the judiciary, Cardozo was concerned that instability and chaos would result if every judge followed his or her own political convictions when deciding a case. To forestall the onset of such legal disarray, Cardozo and other realists argued that all judges must interpret the law to advance the welfare of society. In Posner’s biography of Cardozo, he quotes him as saying, “Law ought to be guided by consideration of the effects [it will have] on social welfare.” This theory of law is known as sociological jurisprudence, and represents the third major strand of thought in the U.S. legal realism movement. Proponents of sociological jurisprudence encouraged judges to consult communal mores, ethics, and RELIGION, and their own sense of justice when attempting to resolve a lawsuit in accordance with the collective good. Sociological jurisprudence was foresha- dowed by English philosopher JEREMY BENTHAM, who argued that the law must serve the interests of the greatest number of people in society. Bentham, whose legal philosophy is known as utilitarian jurisprudence, defined the collective good in terms of pain and pleasure. Judges should decide cases , Bentham thought, to achieve results that will maximize the pleasure GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 276 LEGAL REALISM of the majority of the residents in a given community, without much concern for the pain that might be inflicted on the balance of society. Some realists turned Bentham’s philosophy on its head, arguing that the law should serve the interests of the most fragile members in society because they are the least represented in state and federal legislative assemblies. This group of realists was affiliated with the U.S. Progressive movement, which became popular during the first quarter of the twentieth century as it sought to reform society by enacting legislation to protect certain vulnerable classes of employees, particularly women and children, from harsh working conditions. These realists were among the most vocal detractors from the Supreme Court’s decision in Lochner, which struck down a state law prescribing the maxi- mum number of hours employees could work during a given week in the baking industry. A Practical Approach to a Durable Result Whereas sociological jurisprudence sought to utilize the common law as an engine of social reform, legal pragmatism, the fourth strand of realist thought, sought to employ common-law principles to resolve legal disputes in t he mos t pra ctical way. Pragmatists argued that a judge should under- take a four-step process when r endering an opinion. First, the judge must identify the competing interests, values, and policies at stake in the lawsuit. Second, the judge must survey the range of alternative approaches to resolving the legal issues presented by the lawsuit. Third, the judge must weigh the likely consequences of each approach, considering the effect a particular decision may have on not only the parties to the lawsuit but also other individuals faced with similar legal problems. Fourth, the judge must choose a response that will yield the most durable result in the course of the law. This pragmatic legal philosophy is often characterized as result-oriented jurisprudence. A Synthesis of Legal Philosophies The fifth strand of realist thought, legal empiricism, attempted to synthesize the other four strands into a single jurisprudence. Made famous by Holmes, legal empiricism claimed that law is best explained as a prediction of what judges will do in a particular case. Empiricists, who were influenced by behaviorists Ivan Pavlov and B. F. Skinner, argued that lawyers can predict the outcome of legal disputes by examining the judicial behavior of a given court. The empiricists’ efforts to integrate the other four schools of legal realism into one coherent philosophy was reflected by their belief that judicial behavior can be influenced by political, economic, sociological, practical, and historical considerations, as well as personal and psychological prejudices and idiosyncrasies. Lawyers and laypersons who spend more time studying these elements and less time studying the labyrinth of legal rules and principles that make up the law, the empiricists concluded, will have a better idea of how a judge will rule in a particular case. FURTHER READINGS Fisher, William W. III, Morton J. Horwitz, and Thomas Reed, eds. 1993. American Legal Realism. New York: Oxford Univ. Press. Hamilton, Alexander. 1788. The Federalist No. 78. Available online at http://thomas.loc.gov/home/histdox/fed_78. html; website home page: http://thomas.loc.gov (accessed August 6, 2009). Holmes, Oliver Wendell, Jr. 2009. The Common Law. Cambridge, MA: Belknap. Horwitz, Morton J. 1994. The Transformation of American Law: 1870–1960. New York: Oxford Univ. Press. Hovenkamp, Herbert. 2000. “Knowledge about Welfare: Legal Realism and the Separation of Law and Econom- ics.” Minnesota Law Review 84 (April). Krawietz, Werner. 2001. “The Concept of Law Revised— Directives and Norms in the Perspectives of a New Legal Realism.” Ratio Juris 14 (March). Patterson, Dennis M., ed. 2003. Philosophy of Law and Legal Theory: An Anthology. Malden, MA: Blackwell. Plato. 1977. The Republic of Plato. Translated by Francis MacDonald Cornford. New York: Oxford Univ. Press. Posner, Richard A. 2004. Frontiers of Legal Theory. Cambridge, MA: Harvard Univ. Press. ———. 1993. Cardozo: A Study in Reputation. Chicago: Univ. of Chicago Press. CROSS REFERENCES Federalist Papers; Legal History; Utilitarianism. LEGAL REPRESENTATION The legal work that a licensed attorney performs on behalf of a client. Licensed attorneys have the authority to represent persons in court proceedings and in other legal matters. When hiring an attorney, a careful consumer considers a number of vari- ables, including the nature and importance of the case, the attorney’s fee and payment arrangement, personal chemistry with the attorney, and the attorney’s reputation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LEGAL REPRESENTATION 277 . resear ching and writing in the 1 960 s typically emphasized one of these types of law. Lawrence M. Friedman emphasized the work of private law in A History of American Law, first published in 1973 to receive anything that the lawyer has acquired in violation of his duties to the client. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LEGAL MALPRACTICE 269 If a lawyer fails to promptly pay. official, the norm will not qualify as law in the minds of legal positivists, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 270 LEGAL POSITIVISM no matter how many people are in the habit of following