Legal Realism and Skepticism
As we look into the topic of legal realism and skepticism we realize that there are basically three basic concepts to understand in this subject. These three tenets are as follows; law is whatever a judge decides it is, law and morality are independent of each other, and rights are conferred. This is in opposition to the theories of natural law and legal positivism. During this chapter we will examine three separate works from three different authors. The first article is "Legal Realism" by Jerome Frank, the second is "The Path of the Law" by O.W. Holmes Jr. and the third selection is "Ships and Shoes and Sealing Wax" by K.N. Llewellyn. Although these three men are all part of the movement of legal realism, they have differences in their arguments and examples. The differences in their articles help to cover all the bases of legal realism.
Jerome Frank was a Chicago lawyer during the time period of the political realism movement. He was appointed to the US Court of Appeals for the Second Circuit by the president, Franklin D. Roosevelt, in February 1941. In the article "Legal Realism" by Jerome Frank a dispute between two taxi companies is examined and discussed. The main concern of this article is what law means to the average man when he is consulting with an attorney. Through the examination of this case you see that the interpretation of the law depends on which court the case is being tried in. In this case Blue & Gray Taxi vs. Williams Purple Taxi, there is a dispute between two cab companies about who has the right to certain territories due to an agreement between the Blue & Gray taxi company and the A & B railroad company. The rail company had signed an agreement stating that no taxi company would be allowed to pick up or drop off passengers on their premises. When the Williams Purple Taxi company started infringing on their territory, the Jones family, owners of the Blue & Gray Taxi Company, sought counsel from a local lawyer. This attorney advised the Jones family that their agreement with the A & B rail company was invalid due to the Kentucky state monopoly laws. After learning that they would likely lose the case due to the Kentucky monopoly laws, the Joneses decided that they wanted to take their case to the Federal Courts. The lawyer representing the Joneses informed them that since their company was based in Kentucky, the United States courts would rule against them due to the Kentucky laws.
After this setback, the attorney who represented the Joneses gave them the idea to move their company to Tennessee, where the monopoly laws were less strict and they were more likely to get a court to rule in their favor. With this advice he also gave them a warning, if the federal courts realized that they had moved solely to trick the system they would not use the Tennessee laws to rule in their case. Instead they would revert back to the Kentucky laws and the Joneses would likely lose. With this advice, the family decided to move their holdings to Tennessee and try to make a case to take to the US Supreme Court. Despite all of the risks, the Jones family decided that it was time to take their case to the Federal Courts and try their luck with the US Supreme Court Justices. After this trial, six of the nine justices agreed with the side of the Joneses and the law was fixed. Had this gone the other way around, the law would still have been fixed and there would have been no other courts that the Joneses could appeal their case to.
Frank uses this specific case to show the difference between probable law and actual law. Probable law is a "guess to a specific future decision" while actual law is "specific to a past decision, as to that situation." This is basically saying that the law is up to the interpretation by the judge ruling on the case, unless this specific issue has been ruled on before. Even still, if this has been ruled on before and it is said to be "actual law",...
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