It has long been said, « A good lawyer knows the law; A great lawyer knows the judge. This saying couldn`t be truer in everyday legal practice, but perhaps not for the reason most people think of first. In my experience, judges rarely make decisions based on particular relationships or preferences for a particular legal counsel or parties. Of course, this is a great generalization and I am sure it happens somewhere in the democratic world from time to time, but I firmly believe that it rarely happens. Judges, while human, regularly strive to be impartial towards individual litigants or criminal defendants. What is happening, however, is that judges, for the sake of « general fairness, » sometimes deviate from the strict application of the law when this does not seem to be « common sense. » Legal realism was primarily a reaction to the legal formalism of the late 19th and early 20th centuries and was the dominant approach for much of the early 20th century. With her negative willingness to challenge formalistic assumptions, she managed to ensure that judges always do what they said, so that it is often said that « we are all realistic now ». Realism, however, has failed in its positive quest to find a better way to predict how judges would behave than relying on the reasons given by judges. As a form of jurisprudence, legal realism is defined by the emphasis on the law as it actually exists in practice, rather than as it exists in books. To this end, he focused on the actions of judges and the factors influencing judicial decision-making processes. As Karl Llewellyn argues: « [t]he decisions are judges; Judges are men; As men, they have a human past. [3] Thus, law did not exist in a metaphysical domain of fundamental rules or principles, but was inseparable from human action and the power of judges to determine law. To understand the decisions and actions of legal actors, legal realists turned to social science ideas to understand human behavior and relationships that resulted in a particular legal outcome.

[4] Many critics have argued that realists have exaggerated the extent to which the law is « riddled » with loopholes, contradictions, etc. [17] The fact that most legal questions contain simple and clear answers that no lawyer or judge would dispute is difficult to reconcile with the strong realistic claims of pervasive legal « vagueness. » Other critics, such as Ronald Dworkin and Lon Fuller, criticized right-wing realists for their attempt to sharply separate law and morality. [18] [19] Legal realism is associated with American jurisprudence of the 1920s and 1930s, particularly among federal judges[1] and lawyers in the Roosevelt administration. Notable jurists associated with legal realism include Felix Cohen, Morris Cohen, Arthur Corbin, Walter Wheeler Cook, Robert Hale, Wesley Hohfeld, Karl Llewellyn, Underhill Moore, Herman Oliphant, and Warren Seavey,[1] many of whom were associated with Yale Law School. As Keith Bybee argues, « Legal realism has exposed the role of politics in judicial decision-making, challenging conventional efforts to anchor the judiciary on a solid and impartial basis. » [2] Contemporary jurists working in the tradition of law and society have broadened the foundations of legal realism to postulate what has been called the new legal realism. Although the American right-wing realist movement first emerged as a cohesive intellectual force in the 1920s, it drew heavily on a number of earlier thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to law were heavily criticized by thinkers such as Roscoe Pound, John Chipman Gray, and Benjamin Cardozo. Philosophers such as John Dewey had supported empirical science as a model for all intelligent research, arguing that law should be seen as a practical tool for promoting human well-being.

Outside the realm of law, in areas such as economics and history, there has been a « general revolt against formalism, » a backlash in favor of more empirical ways of practicing philosophy and the humanities. [8] But by far the most important intellectual influence on legal realists has been the thinking of American jurist and Supreme Court Justice Oliver Wendell Holmes, Jr. The training and experience that an individual lawyer undergoes to prepare for the bailiff is aimed at evading this human condition and making him an objective thinker. The quality abstract society that lawyers and judges try to teach is called « cognitive » decision-making. Most individuals are usually « affective » thinkers. It simply means that most people use the right side of their brain to make decisions. These people tend to be emotional, creative, and interested in people rather than legal issues. They often see hearings and trials as human tragedies rather than abstract issues. Cognitive thinkers, on the other hand, are supposed to argue with the left side of their brains. This thinker is more interested in abstract issues than people, likes to wait and not decide until all the evidence is received, and uses inductive reasoning to make a final logical decision.

That being said, no one is completely « cognitive » or « affective »; On the contrary, each person is a combination of both, and a continuum is probably a better perspective than a strict answer to the question of what kind of thinker is a particular person. For obvious reasons, most judges tend to be more cognitive thinkers; Again, however, it is a matter of degree. Each judge has a different mix of the two types of thought patterns and can be influenced by a variety of factors when making a decision based on who he or she is. In my experience as a relatively young lawyer, I have sometimes been frustrated to find that most trial judges look like legal realists rather than legal formalists.