A generation ago “legal realists” led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.Llewellyn, too, changed his mind. In 1934 he had said, “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” Seventeen years later he confessed that his earlier behavioral descriptions of law contained “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.”In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: “The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0003055400240756

The Neo-Behavioral Approach to the Judicial Process: A Critique

While the popular image of the Sherman Act is that of a “trust-busting” statute, conduct remedies have been more common than structural relief. This paper evaluates the effect on economic welfare of conduct remedies that have resulted from ten prominent Sherman Act monopolization cases. In general, we find that in some cases the behavioral relief has had no consequence other than the cost of litigation and cost of compliance; in other cases, the remedies probably reduced consumer welfare. Cases studied are United Shoe Machinery, AT&T, Std. Oil of California, IBM, United Fruit, Kodak, Safeway, GM, Jerrold, and Blue Chip Stamp.

Nathaniel L. Nathanson

Papers

Mr. Justice Frankfurter and Administrative Law

Davis: Administrative Law Treatise