91 Texas L. Rev. 749
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.