THE YALE LAW, JOURNAL

VOLUME 70 JUNE 1961 NUMBER 7

LEGAL REALISM: ITS CAUSE AND CURE*

GRANT GILMOREt
From time to time there arises a school of legal thought which undertakes
to make a clean sweep of the errors of the past and establish truth. In this
country, for half a century, such a movement has been running its course under
the name of Legal Realism. Today the controversy over realism seems to have
died out; the time may have come when we can profitably inquire what it was
about.
When we look back at any intellectual movement which violently engaged
men's minds, it is easy to see that the premises were shaky and the promises
overstated. But that is not enough, The mere fact that a particular way of
thinking absorbed the best minds of a generation puts us on notice that some-
thing fundamental was going on-even though, from our vantage point in
time, we may be able to see that what was going on was not what, at the time,
seemed to be going on.
At first glance realism appears to have been a high-level jurisprudential or
philosophical movement, based principally in the law schools, which offered
a critical analysis, of a destructive or negative character, of certain then widely
accepted theories of law. While the realist controversy was at its height, it
seemed to be a matter of abstract academic debate, at a far remove from the
work-a-day questions which concern the practicing lawyer and his clients. I
believe, however, that the academic philosophers and the practicing lawyers
were closer together than they realized or would have cared to admit: realism
was the academic formulation of a crisis through which our legal system passed
during the first half of this century. I shall draw your attention to some aspects
of that crisis and how they were met: first, however, it will be helpful for us
to consider the nature of the realist criticism.
Legal realism may be viewed as an elaborate commentary on an attitude
toward law symbolized by the figure of that master of epigram, Justice Holmes.
*For a number of years Yale University has conducted each June a series of Alumni
Seminars for the pleasure or profit of graduates of the University who return to New
Haven to attend the commencement exercises or class reunions. In 1960 one of these
Seminars was presented under the auspices of the Law School. This paper was one of
several which were delivered on that occasion. It was, therefore, prepared for an audience
made up principally of non-lawyers. This fact may serve to explain why some matters
are dealt with in a 'manner which would be inappropriate in a discussion prepared for an
exclusively professional audience.
tWilliam K. Townsend Professor of Law, Yale University.
1038 THE YALE LAW JOURNAL [Vol. 70 :1037

The life of the law, Holmes told us, has not been logic; it has been experience.
And again: the common law is not a brooding omnipresence in the sky. And
again: general propositions do not decide concrete cases.The habit of epigram
survived in the later realist generations. Prejudice, said the late Felix
Cohen, is the term we use to describe our opponent's facts; fact is the term
we use to describe our own prejudices. The bias of realism was anti-conceptual,
anti-doctrinal. It put enormous emphasis on facts-the facts of a case, the
facts of an economic situation, the facts, it may be, of life. But even as to
facts, the realists maintained an ingrained scepticism.
The trouble with the nineteenth century, said the realists, was that lawyers
believed, and law professors taught, that law was a symmetrical structure of
logical propositions, all neatly dovetailed. The truth or error, the rightness or
wrongness, of a judicial decision could be determined by merely checking to
see whether it fitted into the symmetrical structure; if it fitted, it was right;
if it did not fit, it was wrong and could, or at least should, be disregarded.
Moreover, law students could be trained by being made to read carefully
selected collections of correct cases, from whose study, by induction, they could
arrive at the correct general principles.
All this, said the realists, was nonsense.' As a countervailing truth they pro-
posed something like the following formulation. Law is not static but dynamic.
It changes as society changes, both forever in an equilibrium precarious and
unstable. The symmetrical structure of dovetailed logical rules has never
existed-by necessary hypothesis could never exist. Generally stated rules of
law do not so much explain as conceal the bases of judicial decision. A judge's
holding in a case is an ad hoc response to a unique state of facts, rationalized,
after the event, with a dissimulation more or less conscious, and fitted willy-nilly
into the Procrustean bed of approved doctrine. The motivations of the judicial
response are buried, obscure, unconscious and-even to the judge-unknow-
able. The value of a case, for purposes of study, lies in the actual decision-on
this state of facts A won and B lost-rather than in the reasons given for the
decision. The predictive value of past cases for future decisions is therefore
slight or nil: the theory of precedent is simply a gimmick by which clever
judges fool other people and stupid judges occasionally fool themselves. The
study of doctrine-of rules of law-is sterile and absurd.
I have overstated the realists' position, as the realists overstated the position
of their predecessors. It must be borne in mind that "realism" was never a
well organized movement-indeed it was never organized at all. There were
almost as many strands in realist thinking as there were realists. Some devoted
themselves to the attack on the "conceptualism" of the past: at its worst this
line degenerated into a childish nihilism. Others insisted principally on the
need for the law-or for lawyers-to take over the methods of science; this
meant for some the count-weigh-and-measure techniques of the natural sci-
ences and for others the less rigorous techniques of the sociaf sciences (among
which law was frequently listed). Still others placed the new insights at the
1961] LEGAL REALISM: ITS CAUSE AND CURE 1039

service of political or ethical theory: since law had been freed from the dead
hand of the past, it should in its new freedom be made to serve the values of
a good society. If pursued far enough, this line of inquiry leads, on the one
hand, to the conclusion that law is simply an instrumentality to be used by the
state and, on the other hand, to the opposite conclusion that there exists a
natural law (the law that "ought to be") which prevails over the positive
law (the law that "is," as announced and enforced by the appropriate organs
of state authority). Unraveled, these various strands in the skein of realist
theory lead to surprisingly diverse conclusions; when gathered up, they remain
discernibly related to each other and form a pattern.
It may have occurred to you that I have been using the term "law" loosely-
referring now to the decisions of judges, now to the total body of positive law,
decisional and statutory, now to the fundamental principles by which society
is organized. I shall not apologize for my imprecisions nor do I propose that
we clear them up by proceeding to a definition of terms. Intellectual discussion
can be made too tidy; when our categories become over-defined we lose
touch with reality. At all events, the realists used the term "law" as a symbol
of multiple reference and we shall be faithful, at least to history, in leaving
that usage undisturbed. The core meaning is law in action: the work of courts
and legislatures. The other, broader meanings come in as overtones, to add
richness, depth and confusion.
The realists claimed that the traditional explanations no longer described
with even a remote approach to accuracy what our legal system was and how
it worked. I am sure they were right. We may go a step further: during the
half-century, more or less, of the realist controversy our legal system was
undergoing profound modifications of a sort which were not (and could not
have been) apparent to immediate observers. I shall attempt to describe some
of these modifications and to suggest why they were inevitable. We shall limit
our discussion to the area of so-called private law-not because comparable
developments could not be traced in the field of public or constitutional law
(I am sure that they could)-but because the limitation will serve to focus our
discussion.
There are two preliminary observations to be made. The first is that, under
the complicated scheme of government which we adopted, the great bulk of
private law questions was left to the states. The Federal Government played
almost no part in the establishment or development of the law of property or
of contracts or of torts. In part the remission of these questions to the states
resulted from what came to be the accepted meaning of the Constitutional
provisions limiting the powers of the Federal Government and preserving the
powers of the states. It is also true, however, that the Federal Government
long remained inactive in areas where it had a clear Constitutional right to
act-in areas, indeed, where the states were forbidden to act.
Secondly, the states left the job almost entirely to the courts. The legisla-
tures played an astonishingly minor role. There was an occasional legislative
1040 THE YALE LAW JOURNAL [Vol. 70 :1037

intervention designed to channel the course of judicial decision in a new direc-

tion. But such intervention was exceptional: throughout the nineteenth cen-
tury the courts were left largely to their own devices. Our private law was,
overwhelmingly, judge-made law. We must therefore inquire how the judges
went to work.
We inherited from England a tradition of common law-that is, of de-
cisional or judge-made law. Courts decide only the cases that come before them
and their decisions generally bind only the parties litigant. Nevertheless, it
is a part of our tradition that courts must decide particular cases in the light
of historically developed general principles and that instead of merely giving
judgment-say, that A must pay B damages for breach of contract-the
court must explain in a reasoned opinion why A must pay. Another vital
element in the tradition is that decision should be consistent: if it is decided
today that a certain course of conduct by A amounts to a breach of his contract
with B, so that A must pay damages, and if tomorrow it is shown to the court
that C's course of conduct toward D was identical with (or very similar to)
A's toward B, then C, like A, should be charged with breach and made to pay
damages. This is the theory of precedent, of standing by the decisions: in
lawyers' Latin, stare decisis. Although these propositions may seem too
obvious to be worth stating, it is helpful to remember that legal systems
which recognized none of them have been set up, and have worked, it may be,
quite as well as our own.
We must not assume that, when this country began its staggering task of
industrializing an almost unsettled continent, we had anything like a complete
structure of law. Any system of law is complete in a purely formal sense: that
is, if you take your case to a judge, he will decide it. There are no issues
incapable of being authoritatively decided. On the other hand, no legal system
provides answers in advance to questions that have not yet been asked. Our
courts in the early nineteenth century were writing on a largely clean slate.
There is little in our law of contracts, for example, that has any recognizable
ancestry before 1800. The explanation for this is not that we had discarded
English law and were deliberately making a fresh start: there was in fact
no English law for us to discard and it is quite as true of England as it is of
the United States that the law in this and in many other areas was a nine-
teenth century invention. Our rules of contract came into existence in the
course of the industrial revolution, as the organization of business assumed
what we would recognize as a discernibly modern form and as personal,
rather than real, property became the chief repository of wealth.
The process of case-law evolution, after running smoothly for a hundred
years, began to show signs of strain after 1870 or 1880. The need for reform
was suggested from the law schools, from the courts, from the practicing bar;
the first steps toward reform were indeed taken. An unusually perceptive
critic like Holmes could sense what was going on more clearly than most.
But a note of vaguely articulated unease fills much of the legal literature of
the last quarter of the century.
19611 LEGAL REALISM: ITS CAUSE AND CURE 1041

I suggest that our case-law system was beginning to break down of its
own weight. Toward the end of the nineteenth century the rate of acceleration
in printed case reports became nightmarish. Digests of all the reported cases
decided from the institution of courts in the American colonies until 1896-a
period of over two hundred years-take up three shelves in the Law Library.
Digests of cases decided since 1896 fill more than thirty shelves. This flood set
in during the last quarter of the nineteenth century; not only were more courts
in more states deciding more cases for more people, but a much greater pro-
portion of the cases being decided was finding its way into print. You are
familiar with the revolutionary effect of the discovery of printing on civiliza-
tion. An almost equally revolutionary event in our legal history was the estab-
lishment of the National Reporter system during the 1870's: the West Pub-
lishing Company systematically undertook to publish all the opinions handed
down by the federal courts, the highest state courts and, in increasing number,
lower state courts. Whether the West Publishing Company, like the discoverer
of the atomic bomb, should be looked on as a benefactor of mankind or as an
enemy of the human race is a problem of moral philosophy with which a
lawyer is ill equipped to deal.
When the number of printed cases becomes like the number of grains of
sand on the beach, a precedent-based case-law system does not work and can-
not be made to work. A hundred years ago a lawyer, in the course of his pro-
fessional career, could-and many did-become familiar with the entire body
of case law, both in this country and in England. In any given field, a com-
petent lawyer could easily master all the available precedents. In this country
it has been a long time since even the best lawyer could make that claim,
even in the narrowest field.
But the effect of the multiplication of cases to infinity is not merely an
accretion of intellectual anxiety among lawyers. This phenomenon strikes at
the roots of a case-law system. The theory of precedent depends, for its ideal
operation, on the existence of a comfortable number of precedents, but not
too many. Such a theory could indeed establish itself only in a legal system
already mature: only in relatively modern times does it become articulated in
English law. There must be a substantial accumulation of the wisdom of the
past before the courts can begin drawing on it for the construction of the
bridge along which we move toward the future. But when the store of raw
materials becomes too great, too varied, too confused, the bridge-building
process turns into a random operation. When it becomes possible to cite to a
court not merely two or three prior cases which bear a reasonable relationship
to this case, but dozens of cases, many of them so nearly identical on their facts
as to be indistinguishable, decided every which way-then what is the court to
do?
One thing the court will do-to judge by our own experience-is radically
to change its way of using cases. I am indebted to an English colleague, now
transplanted to our alien soil, for the observation that English lawyers have
 THE YALE LAW JOURNAL (Vol. 70 :1037

an approach to cases which is at the opposite pole from the approach which
has been bred in the bone of every American lawyer for generations. The
English have the great good fortune of being less numerous and less litigious
than we are, and of having a single, instead of a multiple, system of courts.
The English are still apparently living with a case-law system, even though
it is reasonable to suppose that they too are gradually approaching the jump-
ing-off point. In England, I am told, the case "on all fours"-the case whose
facts are indistinguishable from the facts of the case at bar-far from offering
itself in a drift of carbons as it does with us, hardly exists at all. Therefore in
England the precise facts of prior cases are not looked to with particularity;
what is important in the precedents-the cases which, being in the same
general area, are in point-is the process of reasoning by which they were
decided, the general principles which they illustrate.
Having been trained as an American lawyer, I find this approach to the
use of precedent shocking. I know that a case stands on and for its own pre-
cise, particular facts. I tell my students with wearisome iteration: Never
mention a case without stating its facts; Never quote general language from
an opinion, divorced from the factual context in which the language was
delivered; take care of the facts and the law will take care of itself. This is
the end result of fifty years of experience with an overburdened case-law
system. Our use of precedent has become self-defeatingly narrow. We chop
logic, we split hairs, we distinguish the indistinguishable. And as we do so,
the course of judicial decision, following our impossible refinements, becomes
capricious and unpredictable. If you sharpen the point of a pencil too fine,
the point-or the pencil-will disappear. So with our use of precedent.
Long before these pressures had approached breaking-point, isolated voices
had begun to argue in favor of a general codification. This argument, in
Anglo-American legal history, was authoritatively formulated at a time when
the case-law system was working well-when indeed it had a century of
vigorous life before it. In eighteenth century England Jeremy Bentham sought,
with powerful naivet6, to demonstrate the inherent superiority of codified
law over case law. In this country the argument for codification was forcefully
stated by a protean figure of the early nineteenth century: Joseph Story,
justice of the Supreme Court of the United States for over thirty years, pro-
fessor of law at Harvard during much of the same period, author of textbooks
on practically everything. Toward mid-century, David Dudley Field of New
York came within a hair's-breadth of persuading that state to codify its law;
his brother Stephen, who emigrated to California with the Forty-Niners,
carrying the Field Codes in his slim baggage, succeeded in having them
adopted as the basic law of the Golden State. After 1850 professional interest
in a general codification became continuous and, we might say, respectable.
We may usefully pause to consider what we mean by the ambiguous term:
codification. "Code" is often used as a loose synonym for "Statute": when
the legislature passes a statute which regulates an area previously left to the
19611 LEGAL REALISM: ITS CAUSE AND CURE 1043

decisional law, lawyers are apt to say that the area has been "codified." I
think that we can make a better use of the two terms: A "statute," let us say,
is a legislative enactment which goes as far as it goes and no further: that
is to say, when a case arises which is not within the precise statutory language,
which reveals a gap in the statutory scheme or a situation not foreseen by the
draftsmen (even though the situation is within the general area covered by the
statute), then the court should put the statute out of mind and reason its way to
decision according to the basic principles of the common law. A "code," let us
say, is a legislative enactment which entirely pre-empts the field and which is as-
sumed to carry within it the answers to all possible questions: thus when a court
comes to a gap or an unforeseen situation, its duty is to find, by extrapolation
and analogy, a solution consistent with the policy of the codifying law; the pre-
Code common law is no longer available as an authoritative source. We may
take another, subsidiary distinction between "statute" and "code." When a
"statute," having been in force for a time, has been interpreted in a series of judi-
cial opinions, those opinions themselves become part of the statutory complex:
the meaning of the statute must now be sought not merely in the statutory text
but in the statute plus the cases that have been decided under it. A "code," on
the other hand, remains at all times its own best evidence of what it means:
cases decided under it may be interesting, persuasive, cogent, but each new
case must be referred for decision to the undefiled code text.
Having proposed these definitions and distinctions to you, I must caution
you against accepting them. For one thing, our two terms-statute and code-
are not customarily used by lawyers, or even by law professors, in these care-
fully differentiated senses. In the second place, while it is helpful for purposes
of discussion to separate our two categories sharply, set them up as black
opposed to white, in real life they merge into each other with infinite grada-
tions.
We did not of course get-we do not have now-a fullblown codification
on the French or German models. It is a facet of our national genius that we
reject clear-cut solutions. We make do, we tinker, we shore up the falling
structure with an ingenuity that verges on madness. So here: we proceeded
to codify-or at least reduce to statutory form-various bits and pieces of our
law, going about it, however, in such a haphazard way that not even God
could have told what we were about.
The organization through which were taken the first steps toward codifica-
tion of our private law-if indeed that is what they were-was the National
Conference of Commissioners on Uniform State Laws. This cumbersome name
suggests an aspect of our problem on which we have not yet commented. Mat-
ters of private law were left initially to the states. That meant, to start with,
a handful of homogeneous jurisdictions strung out along the Atlantic Coast.
By the end of the century, it meant forty-odd jurisdictions, spread across a
continent, living under the most diverse conditions of culture, climate and
economic organization. Each state was, or had, a law unto itself: the most
 THE YALE LAW JOURNAL [Vol. 70:1037

obvious symptom of our developing legal crisis was the irreconcilable diversity
of the rules of law applicable to commercial transactions which were them-
selves no respecters of state lines. To this evil, the device of a system of na-
tionally uniform state laws, cast in statutory form, suggested itself as a hopeful
solution.
The National Conference of Commissioners first addressed itself to matters
of basic commercial law. Its early labors were rewarded with astonishing
success. Uniform Statutes on the law of negotiable instruments and of sales,
to mention only two, were quickly adopted by most, or by all, states. In less
than thirty years a major segment of our private law was restated in statutory
form-was, perhaps, codified.
These early "Uniform Acts" were certainly not treated as codes (in the
sense in which we are using the term) ; indeed, they were hardly treated as
statutes. The general understanding of the profession seems to have been that
the new statutes were designed merely to restate the common law. The lawyers
and judges, who were entirely familiar with the common law, went on think-
ing, talking, arguing and deciding cases, as if the statutes had never been
passed. In time, the common law background faded from consciousness and the
statutes had to be seriously examined-but that took a generation or more.
After 1900, the task of codifying the common law became the never-ending
preoccupation of the state legislatures. Statutes, uniform and nonuniform, in-
creased by geometrical proportion. But many basic areas of the law for a long
time resisted, and in some instances continue to resist, the process. Yet even
where the legislatures forebore to intervene, the progressive breakdown of a
relatively pure case-law system manifested itself in odd and interesting fash-
ions. It is of the essence of such a system that it defies precise analysis: it
is fluid, like mercury to the grasp. It can be described in a series of rough ap-
proximations; it resists being pinned down by any form of authoritative state-
ment. Yet between 1920 and 1940, the attempt was made to pour the common
law into a rigid mold. This extraordinary operation was performed by the
American Law Institute, whose membership comprised the most distinguished
practicing lawyers, judges and law professors in the country. During twenty
years, the Institute produced statements, called for some reason Restatements,
on almost every branch of the common law: we have a Restatement of Con-
tracts, a Restatement of Torts, a Restatement of Property, and so on. The
best of the Restatements were of the highest professional quality and have
had, deservedly, a wide influence.
The Restaters may not have asked themselves why they were doing what
they were doing; it is sufficient unto the day to find some task not demon-
strably anti-social and to work at it. They were, however, producing something
new under the sun: a common law in statutory form, distinguishable from
statute or code only in that it lacked the legislative sanction. Now courts if
they were so inclined-and many were-could "follow the Restatement" exactly
as they would follow a statute. The Restatement episode fits into our argument
1961] LEGAL REALISM: ITS CAUSE AND CURE 1045

as an attempt, of the highest order of interest, to preserve the viability of a

case-law system which, in its pure form, had outlived its time.
I suggested earlier that an instinctive judicial response to the problem of
too many cases had been the development of an extraordinarily narrow theory
of precedent. We may now note a second phase of judicial response, which
becomes discernible only when the legal situation at large, so to say, has been
significantly modified. I have in mind a tendency among judges to refuse to
make great decisions.
In the great days of the common law the great judges, whose names all
lawyers revere, were bold and daring innovators, who made law with a sort of
joyous frenzy: Mansfield, Marshall, Kent and many others. Today the pace
has slackened: our judges look before they leap. Cardozo was one of the great-
est of modern judges: his preferred technique was, in a series of cases taken as
opportunity presented them, to inch almost imperceptibly toward a goal which
was, I have no doubt, clear in his mind from the beginning. Occasionally in
Cardozo there is a throwback to the great days: the most recent case I can
think of in which an American court revolutionized a major legal doctrine in
the field of private law is a case of Cardozo's: the date was 1916. But by pref-
erence our judges assume a more humble role.
Along with this attitude of timidity in innovation goes, naturally enough,
an attitude of increasing deference toward the legislative command. In the
nineteenth century, the principal canon of statutory construction was: any
statute in derogation of the common law-as, of course, what statute is not?-
must be strictly construed. That is to say, the courts, despite and not in-
frequently in the teeth of the statute, reserved for themselves the greatest
possible freedom of manoeuvre. Since then, we have made much progress.
Courts have learned to construe statutes broadly, not narrowly, and indeed
show signs of going even further: in the light of what might be called the
principle of statutory radiation, they apply the legislative mandate even beyond
the area to which the statute, according to its terms, is limited. In short, the
courts have been learning to treat statutes as if they were codes.
Statutes themselves have changed radically in character. The typical statute
as recently as a generation ago was drafted in a style of loose and vague gen-
erality. The draftsmen seem to have been little concerned with a precise use
of terms: ambiguities, inconsistencies and downright contradictions abound.
Furthermore the draftsmen were accustomed to paint with a broad brush:
the older statutes state a general proposition without filling in the subsidiary
details. Statutes so drafted were largely dependent on judicial construction to
reduce the statutory generalities to particular meanings. We have now become
accustomed to a quite different style of drafting, which is precise, highly techni-
cal and detailed to an extraordinary degree. This new style seems to have come
in with the federal regulatory statutes of the New Deal period, but has since
that time become standard for all legislative enactments state and federal, in
the area of private as well as of public law.
1046 THE YALE LAW JOURNAL [Vol. 70 :1037

We do not yet have enough experience with our modern, tightly drafted
statutes to know how well they will work in the long run. One of the strengths
of the older statutes was their imprecision and formlessness: as conditions
changed, the courts, with almost as much facility as if they were dealing with
a judge-made rule, could mold the old statute to the new conditions. Modern
statutes are much less susceptible to judicial manipulation. An unexpected
change in the business cycle might leave the courts powerless until the com-
plicated mechanisms of the state and federal legislatures could be set in reme-
dial motion. One thing does become clearer with each decade-going off the
common law standard is like going off the gold standard-you can never go
back. Of the making of statutes there is, and will be, no end.
There is one last piece to be produced for our jig-saw before (hopefully)
we set about assembling the pieces. I have insisted on the preponderant role
played by the states as architects of our private law. The federal giant, in this
area, is just beginning to stir: with his long-delayed entrance, we are, it may
be, at last catching sight of the principal character.
Our present subject is not the massive intervention of the Federal Govern-
ment in all areas of social and economic life-although I am sure that the
events which I will briefly rehearse are not unrelated to that major political
event of our century. In the reflecting pool of our private law, we sometimes
catch a mirror image of the great events that take the public eye.
Well over a hundred years ago in a case called Swift v. Tyson, Justice Story,
the apostle of codification, delivered an opinion for the Supreme Court of the
United States which announced the doctrine that in matters of general com-
mercial law the federal courts were not bound to apply the common law of
any state. We may look on the rule of Swift v. Tyson as an early-perhaps the
earliest-attempt to find a workable solution to the bothersome problems posed
by the increasing diversity of the laws of an increasing number of states. The
solution was not eminently successful: while the federal courts were not
bound to follow the state courts, neither were the state courts bound to follow
the federal courts, which led to the unhappy situation that winning or losing
your case might depend on which set of courts you happened to get into.
In 1939, in one of its most celebrated reversals, the Supreme Court, speak-
ing through Justice Brandeis, announced the discovery that Swift v. Tyson
had been unconstitutional all along: the federal courts must follow state de-
cisional as well as state statutory law in all cases where state law (and not
federal law) applies. The name of the overruling case was Erie Railroad
Company v. Tompkins: working out its implications has ever since provided
a livelihood for many lawyers and headaches for all federal judges. But I do
not propose to bore you with the ramifications of Erie theory.
Erie seemed to announce that state law should prevail, unless displaced by
a federal statute, and that there should be no competing federal common law.
The point I should like to make is that the Supreme Court, even during the
years while it has been diligently tending Erie, has, almost unconsciously as
19611 LEGAL REALISM: ITS CAUSE AND CURE 1047

it were, been allowing a vast new growth of nonstatutory federal decisional

law to spring up and run wild. Since Erie it has been discovered, for example,
that the law applicable to any transaction to which the Federal Government, in
any of its capacities, is a party is federal law: if there is no applicable federal
statute, the court is free to improvise and need not follow the law of any state.
Even more interesting is a principle which is beginning to emerge in the ap-
plication of federal statutes. Since the establishment of the Republic it has been
assumed, almost without discussion, that a federal statute is a limited thing,
just as the Federal Government is one of limited powers. When a gap appears
in a federal statute, it should be filled in, according to traditional theory, by
resort to the great corpus of the common law-that is, by resort to
state law (since, except in the limited area staked out by Swift v.
Tyson, there was assumed to be no general federal common law). The new
principle gives to federal statutes an area of much wider application: gaps,
it now appears, should be filled in by extrapolation from the statute itself.
Thus, we might say, each federal statute carries with it a sort of floating
penumbra of potential common law all its own.
We have come a good way from our starting point. We have noted several
types of response to what I have called the break-down of the common law sys-
tem: the narrowing of the theory of precedent, the abdication of judicial power
to innovate, the replacement of decisional law by statute, the attempt to
achieve nationally uniform state laws, the current indications of a federaliza-
tion of even our private law, the tendency to promote statutes to a code
status. The movement called legal realism was, I suggest, still another type
of response to the same fundamental crisis.
Legal realism was essentially a demonstration that the system of law which
had evolved in this country had become intolerably overburdened and un-
workably complex. Realism in this century has been an American exclusive:
it has had no counterpart in England or in the European countries whose
legal systems are closely related to our own. It was a response to an Ameri-
can crisis-a crisis which was precipitated by our phenomenally rapid nation-
al growth in population, in wealth, in diversity of economic organization and
cultural circumstance. We need not go the length of saying that the move-
ment we know as realism is unprecedented. If, for example, we knew more
about Roman law than we do, we might be able to trace a comparable reaction
during the period when that city-state, reluctantly and almost overnight, be-
came a world empire.
It is familiar learning that for hundreds of years mediaeval scholars, in-
stead of using their own eyes, relied uncritically on the often demonstrably
inaccurate observations of the Greeks: one aspect of the great rebirth of Western
thought which we call the Renaissance was that people began to see what was
actually in front of them. In somewhat the same way, the realists took
a fresh look at the world and discovered that much had changed since Black-
stone's time. The realist revolution had its greatest success in its onslaught
1048 THE YALE LAW JOURNAL (Vol. 70:1037

on nineteenth century conceptualism-which was overready to assume that

a well-articulated set of rules would by itself enable our legal system to
withstand the shocks of a new era. The realists probed, with striking suc-
cess, into the nature of the decisional process. They created a professional
climate of opinion which immensely facilitated the making of necessary ad-
justments within the traditional framework of our law. They did much to
make of law a more useful and flexible instrument for the resolution of social
conflicts.
Yet even while the realists were working out their analysis of what was
wrong, the law, by a sort of instinctive reaction, was proceeding to purify
itself. The several tendencies which we have noted worked, and work, toward
simplification-toward a more precisely stated, more manageable system.
What had to be done was done-not by a revolution, not at the cost of a break
with tradition, not as the result of a "scientific" diagnosis and treatment. With-
out anyone quite knowing how, the broken-down machine was put back in
running order-as if by an inspired job of tinkering.
The crisis, of which the realist movement was a symptom, and the manner
in which that crisis was for a time met, are typical of the nature and the
process of law. Law cannot be, since society never is, stable. A system which
works well for a generation or a century must sooner or later come in for
repairs. No doubt the more successful a system has been in its own time,
the more delayed and difficult will be the process of renewal. If we may judge
by the violence of the realist reaction, the principal trouble with our law was
that it had worked too well for too long.
Law, like a radioactive substance, renews itself through a process of con-
tinual decay. The disease which threatens to destroy the corpus juris sets
in motion the antibodies which enable it to survive. In the nature of things,
crisis, after a period of repose, can be succeeded only by crisis. Change is the only
constant. Yet in taking stock of the extraordinary changes which have marked
our legal history over the past fifty years, we must not overlook how much in our
tradition has been preserved. The more things change, the French proverb
reminds us, the more they 'are the same: our gains, it may be, are illusory,
but so are our losses.