Two things fatally undermined legal realism in the eyes of the professional legal community and later killed off critical legal studies, legal realism's radical grandchild. The first was that the realists exaggerated the open area, sometimes implying that all cases are indeterminate. The second was that the noisier realists imputed willfulness, whether in the form of politics or prejudice or sheer orneriness, to judges. This was not only resented but implausible, because willful judging is such a clear-cut violation of the rules of the judicial game. It is more plausible that judges, like other people who have to make decisions under uncertainty, act in good faith but rely heavily on intuition, and also on emotion both as shaping intuition and as an independent influence on decision making. As a result, judges are not fully conscious of the beliefs that determine their judicial votes. But Jerome Frank's suggestion that judges needed psychotherapy to discipline their intuitions was hardly welcomed by judges and their backers in the professional legal community, even though it implicitly acquitted the judges of conscious bad faith.
(Richard A. Posner, How Judges Think [Cambridge and London: Harvard University Press, 2008], 112)
Note from KBJ: Here is an essay about legal realism, which is a positive theory of adjudication. As such, it has nothing to say about how judges should decide cases. What judges do and what they should do are different questions, not unlike "Does slavery exist?" and "Should slavery exist?" That something is the case is irrelevant to whether it should be the case. That judges allow personal or political considerations to influence their decisions is irrelevant to whether judges should allow personal or political considerations to influence their decisions.
Keith Burgess-Jackson, J.D., Ph.D. 