Abstract
During the early 20th century, legal scholars were gripped in fierce debate: legal formalists, led by Harvard Law School dean C.C. Langdell, argued that judges should be impervious to emotion and guided by reason alone; in contrast, legal realists maintained that judges are people who have the same foibles and idiosyncratic biases as everyone else. The realists were building on ideas expressed by future U.S. Supreme Court Justice Benjamin Cardozo, who wrote that forces “deep below consciousness”—“the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions”—shape judges and litigants alike (1).
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