Legal Realism Untamed

Frederick Schauer

91 Texas L. Rev. 749

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In this piece, Professor Schauer argues that law is not only about hard cases. There are easy ones as well, and understanding law requires awareness not only of litigated and then appealed disputes, but also the routine application of legal rules and doctrine.

One consequence of the existence of easy cases along with hard ones is the alleged marginalization of the skeptical challenges of Legal Realism. Legal Realism is conventionally understood, in part, to question legal doctrine’s determinacy and positive law’s causal effect on judicial decisions. But if Legal Realism’s skepticism about the constraints of positive law applies only to the sliver of legal events that are litigated cases, Legal Realism’s challenges can be kept at bay. Legal Realism may remain a valuable corrective to the view that even most appellate cases have a legally right answer, but not as a claim that undermines the routine determinacy of law.

This marginalization of Legal Realism turns out, however, to ignore a central Realist theme: the distinction between “paper rules,” on the one hand, and “real rules,” or “working rules,” on the other. The distinction between real and paper rules is well-known, but the effect of the distinction upon the supposed marginalization of Legal Realism has remained unnoticed. For when the paper rules do not describe the actual rules that judges use in making decisions, the divergence between paper and real rules will influence the distribution between easy and hard cases. Thus the distinction between paper and real rules pervades the entirety of law. The gap between paper and real rules, therefore, by producing consequences throughout law and not merely to a small subset of it, reveals the Realist challenge to be more foundational, and—importantly—less tamed.

The question Professor Schauer addresses is as fundamental as it is simple: What makes hard cases hard, and easy ones easy? The answer is empirical, varying with time, place, and area of law. But Legal Realism in its untamed version not only directs us to this question, but also suggests that the answer to the empirical question might, in some contexts and in some domains, challenge the standard view of how law works even in its routine and nonlitigated operation.

Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause

Robert J. Delahunty & John C. Yoo

91 Texas L. Rev. 781

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In this piece, Professors Delahunty and Yoo argue that the Obama Administration’s preferred tool for domestic policy is “prosecutorial discretion” not to enforce statutes with which the President disagrees. The Obama Administration has claimed “prosecutorial discretion” most aggressively in the area of immigration. The most notable example of this trend was its June 15, 2012 decision not to enforce the removal provisions of the Immigration and Nationality Act (INA) against an estimated population of 800,000 to 1.76 million individuals illegally present in the United States. By taking this step, the Obama Administration effectively wrote into law “the DREAM Act,” whose passage had failed to that point.

In Part I, Professors Delahunty and Yoo describe the circumstances of the Administration’s June 15 nonenforcement decision and identify the central legal issues. In Part II, they examine the meaning and scope of the President’s duty to “take care” that the laws be faithfully executed. In Part III, they catalogue and review the most commonly offered and generally accepted excuses or justifications for the breach of the duty to execute the laws, such as unconstitutionality of the law, equity in individual cases, and resource limitations. The authors conclude that the June 15 decision does not fall within any of them.

Time Out of Joint

Kenneth Anderson

91 Texas L. Rev. 859

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Anderson reviews Mary L. Dudziak’s War Time: An Idea, Its History, Its Consequences.

Shleifer’s Failure

Jonathan Klick

91 Texas L. Rev. 899

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Klick reviews Andrei Shleifer’s The Failure of Judges and the Rise of Regulators.

Property Taxes and Community Land Trusts: A Middle Ground

Alese Bagdol

91 Texas L. Rev. 939

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In this Note, Ms. Bagdol explores the challenge of maintaining the affordability of homes situated on Community Land Trust (CLT) land while ensuring that schools and other taxpayer-funded social services do not suffer in communities with a significant CLT presence. Part I outlines the typical features and goals of CLTs in the context of affordable housing. Part II elucidates the impact that rising property taxes can have on the affordability of CLT land, especially in gentrifying areas. Part III examines the range of approaches that states and municipalities take when assessing the value of CLT land and begins to explore the effects of these approaches on municipal revenue. Part IV proposes applying a new tax structure that will temper the negative ramifications of both extremes discussed in the preceding parts of the Note and briefly concludes.

Applying State Contingency Fee Caps in Multidistrict Litigation (MDL) Settlements

Monica Hughes

91 Texas L. Rev. 961

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In this Note, Ms. Hughes argues that state contingency fee caps should apply to settlements of federal diversity cases pending before multidistrict litigation (MDL) courts.  Part II of this Note begins by giving background on state contingency fee caps and the MDL consolidation process.  Part III then moves to the Note’s core analysis: it argues that state fee caps should apply to MDL settlements for three important reasons.  Next, Part IV addresses two policy concerns that critics have advanced against the analysis in Part III.  After resolving these policy concerns, the Note briefly concludes in Part V.