Karl Llewellyn, one of the towering legal minds of the 20th century who helped give birth to Legal Realism, maintained a distinction between “paper rules” and “real rules” (or “working rules”). Paper rules, according to Llewellyn and other Realists, are what you find when you crack open, say, the Michigan Court Rules or the Michigan Compiled Laws; real or working rules are the actual rules judges apply or the decisions they render, often in a manner liberated from the text. This is not to say that judges don’t follow any rules. Rather, according to the Realist movement, judges follow rules that are, in part, of their own devising. It is the role of jurists, then, to ascertain what those rules are, how they will be applied, and which judges prefer them.
How far and how often paper rules diverge from real rules is, naturally, an empirical question—and not one that is particularly easy to answer. The general consensus among those who have not dismissed Legal Realism out of hand is that the simpler, more routine the legal matter, the less divergence that will be found. In hard cases, however, where protracted and contentious litigation takes place, the gulf between paper and real rules can be expansive, leading to appellate courts making crucial legal determinations. Still, it is not out of bounds for lawyers with years practicing in front of trial court judges to suspect that even in ostensibly “simple” and “straightforward” matters, the paper/real rule gap will reveal itself.
Why this is the case is open to several different explanations, some more plausible than others. Without making any claim to exhaust those explanations here, it is first important to consider the fact that in Michigan, for instance, district and circuit court judges usually wind up on the bench in elections where only a very small percentage of the voting population has any idea who they are, what their respective backgrounds are, and can therefore make an informed decision of their qualifications. Trial court judges must often be generalists who handle a broad array of cases, some of which may be outside of their professional wheelhouse. Years of experience on the bench can help remedy potential knowledge gaps and biases, but novel cases, theories of law, and so forth will continue to pop up. At that point, the paper rules may be of no assistance and the judge will instead have to making rulings based on temperament, personal preference, experience, and so on and so forth. Such decisions may have the appearance of being “less grounded” or “less fair” or “less just” than ones unambiguously dictated by paper rules.
Alongside this explanation comes the reality that statutes, court rules, and judicial opinions themselves are sometimes poorly drafted. Judges wishing to merely “apply the law” in a formalistic way may be at a loss when they are expected to not just follow the letter of the law, but ascertain its spirit as well. Formalism works to a certain extent, such as ruling on whether or not an answer to a complaint was filed within 21 days of personal service, but less so when laws contain wording like “reasonable” or “appropriate.” Judicial opinions from higher courts are supposed to have precedential value, but what happens when a court’s articulation of a particular rule or interpretation of law is sloppily written (probably by one of their law clerks)? Should a trial court judge follow such poor wording slavishly or take a more dynamic approach that allows, at least in the context of their court and the case at hand, the real rule to emerge?
None of these questions can be answered easily. Any answers offered will often be informed by “extra-legal” considerations, such as political orientation or unresolved disputes over the rule of the judiciary in society. Much more can be said on this and other related topics. Those posts shall come in due course.