Priel on The Political Theories of the Legal Realists

Dan Priel, City University of Hong Kong School of Law; York University, Osgoode Hall Law School, has published The Political Theories of the Legal Realists. Here is the abstract.

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively "quietist" implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political theory into a science, and who thought law should be evaluated by its ability to increase social welfare. The other group had a very different political theory underlying its approach to law. For these legal realists, law was a traditionary institution, which should reflect, and be continuous with, community customs and values. After showing these different views, I show their relevance to contemporary debates in different areas of law.

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Wieboldt on The "Crusading Fanatics" of American Law: American Jesuits and the Origins of the Neo-Scholastic Legal Revival, 1870-1960 @notredame.bsky.social

Dennis J. Wieboldt, III, University of Notre Dame, is publishing The "Crusading Fanatics" of American Law: American Jesuits and the Origins of the Neo-Scholastic Legal Revival, 1870-1960 in the Journal of Law and Religion. Here is the abstract.

During the early twentieth century, Ivy League legal scholars developed a positivist jurisprudential method known as Legal Realism. Concerned with the law's relationship to social conditions, Realism methodologically triumphed in the elite legal academy and brought to a close what the legal historian Stuart Banner has recently described as the "decline of natural law" in American jurisprudence. Catholic legal scholars in the United States responded to this "decline" by invoking the natural law philosophy of Thomas Aquinas and his (Neo-)Scholastic disciples, arguing that Realism irredeemably divorced law and morality. In so doing, these scholars effectively inaugurated the (Neo-)Scholastic Legal Revival, a decades-long period of debate between Catholic natural lawyers and their positivist contemporaries about the American legal tradition's inextricability from natural law. To understand the history and significance of this debate, this article uncovers the origins of the (Neo-)Scholastic Legal Revival in particular features of nineteenth-century European Catholic intellectual culture that were transmitted to the United States through the Society of Jesus, the world's largest Catholic religious order. In concluding, this article examines the lives and legacies of two American Jesuits who became leaders of the (Neo-)Scholastic Legal Revival and who thereby illustrate how recovering the Revival's forgotten history can enrich scholars' understanding of this important period in American legal history.

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Syed on Legal Realism and CLS from an LPE Perspective @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Legal Realism and CLS from an LPE Perspective. Here is the abstract.

What is the role of law in political economy? And what is the role of political economy in law? And in both cases, when we speak of “law” and “political economy,” are we speaking of academic disciplines or social realities? This tangle of questions constitutes, I take it, the orienting research agenda of the emerging “law and political economy” movement in legal academia. Questions concerning not so much the interaction as the interrelation of law and political economy, with each of these understood simultaneously as fields of study and areas of social life. And within that agenda the legacy of two prior efforts at grappling with these questions—Legal Realism and Critical Legal Studies (CLS)—looms large. This Article seeks to take stock of that legacy, and to advance a critique of central aspects of the received traditions of Realism and CLS, for the sake of developing new foundations for the analysis of both law and political economy. The best way to understand Legal Realism and CLS, this Article contends, is along two dimensions: (1) the first concerns the critique of legal reasoning; (2) the second the role of law in society. After setting out the central Realist and CLS claims on both these fronts, I offer critiques on each, ones that seek to push further in the same direction as the Realist/Crit views but in ways that ultimately repudiate the premises underlying these views. The main lines of Realism and CLS are, I contend, hostage to formalist premises in legal theory and liberal ones in social theory. This owes to the posture of internal critique that both adopted as their dominant strategy. Yet a central claim of the present Article is that the method of critique is always already a method of construction, both in the critique of law and the critique of political economy. To think the two may be separated is perhaps the fundamental flaw in the dominant strands of Legal Realism and CLS. And so in that vein, the Article offers a set of contrasting ideas for the development of legal, political, and social theory.

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Priel on The Legal Realists on Law and Literature @OsgoodeNews @Elgar_Law @ElgarPublishing

Dan Priel, Osgoode Hall, is publishing The Legal Realists on Law and Literature in The Elgar Concise Encyclopedia of Law and Literature (Robert Spoo & Simon Stern eds., 2024) (Forthcoming). Here is the abstract.

This encyclopedia entry considers the legal realists’ neglected contribution to law and literature. Starting with Cardozo’s essay ‘law and literature’ on the importance of judicial style, it then considers the contributions of the legal realists to the topic, focusing especially on Karl Llewellyn and Jerome Frank. Cardozo and Frank—both judges who were interested in making sure they effectively conveyed their ideas—focused on the style a judge should adopt. By contrast, Llewellyn’s more sociological perspective was concerned with how different periods (as well as different jurisdictions) were dominated by different judicial styles. However, in both cases the question of judicial style also had a political aspect. For Frank, judicial style was important for clearly communicating with the average person subject to law; for Llewellyn, judicial style mattered, because there was a connection between the form of a decision and its substantive quality.

Download the essay from SSRN at the link.

Quinn on Judge Jean Hortense Norris, New York City, 1912-1955 @maecquinn

Mae C. Quinn, University of Florida College of Law, has published Fallen Woman (Re)framed: Judge Jean Hortense Norris, New York City - 1912-1955 at 67 U. Kan. L. Rev. 451 (2019). Here is the abstract.

This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist—as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris’s alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional power, and offer a unique vision of the “fairer sex,” she was held to a different standard than her male peers and made to pay the price with her career. In these ways, this Article provides a more complete picture of Jean Norris beyond a shamed and disrobed judge. And it begins to move Judge Norris out of legal history’s margins so that she may be remembered as more than mere mugshot in the American imagination.

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Holtermann, Introduction to Alf Ross: On Law and Justice @JakovoHoHo

Jakob v. H. Holtermann, University of Copenhagen, iCourts, Centre of Excellence for International Courts, has published Alf Ross: On Law and Justice; Editor's Introduction, as iCourts Working Paper Series, No. 116. It is also forthcoming in Alf Ross, On Law and Justice (Jakob v. H. Holtermann, ed., tr. Uta Bindreiter, Oxford: Oxford University Press, 2018).

This paper constitutes the editor’s introduction to the new English translation of Alf Ross’s main work On Law and Justice forthcoming on Oxford University Press (2018). On Law and Justice is a classic work of twentieth-century legal philosophy. The original Danish manuscript (Om ret og retfærdighed) was first published in 1953. The first translation into English (1958) was notably poor – significantly abridged and misrepresenting Ross’s views. Translated in full from scratch, this critical edition sheds new light on Ross’s work and resituates it firmly in the context of current debates in the field. In recent years, Alf Ross (1899-1979) has attracted increasing levels of attention. Not only is he, in HLA. Hart’s words, “the most acute and best-equipped philosopher” of Scandinavian legal realism. On Law and Justice reveals why Ross is by prominent scholars considered one of the three or four most important legal philosophers of the past century – and why his relevance is on the rise again. On Law and Justice provides the most convincing take on a consistent legal realist position. Grounded in a moderate version of the logical empiricist philosophical outlook, the mature Alf Ross outlines a purely empirical legal research programme, which simultaneously fully recognizes the distinctly normative character of law. In this way, Ross’s legal realism avoids the standard critiques against behaviorist reductionism while remaining categorically distinct from legal positivism and natural law. This editor’s introduction to the new edition clarifies Ross’s general philosophical project and details his position including Ross’s sophisticated dual distinction between internal and external aspects of law which essentially anticipated and surpassed Hart’s celebrated but more crude analysis. Holtermann connects Ross’s work with the ongoing empirical turn in legal scholarship, and with related attempts to associate legal realism with more broad philosophical trends under the label naturalized jurisprudence. This paper also includes the editor’s “Note on the translation of ‘gyldig’ and ‘gældende ret’ as ‘valid’ and ‘scientifically valid law’”.

Download the introduction from SSRN at the link.

Nachbar on Form and Formalism @UVALaw

Thomas Nachbar, University of Virginia School of Law, has published Form and Formalism as Virginia Public Law and Legal Theory Research Paper No. 2018-01. Here is the abstract.

Formalism has become an insult. Defined by its critics as the mechanical (even disingenuous) application of rules, or unthinkingly equated with textualism or originalism, the various forms of formalism supposedly promise legal certainty. Having been found unable to provide that certainty, formalism been consigned by its critics to the role of foil for other, more promising, approaches. Yet most critics of formalism inaccurately conflate modern formalism, which emphasizes form, with the deterministic formalism of the Langdellian legal order. Far from the unrealistically deterministic, conceptualist understanding of law attacked by the Realists, modern formalism is best understood as a commitment to form in legal interpretation and legal thinking. Once we free formalism from the role it has been given by its detractors, its merits become more apparent. Formalism allows us to focus not just on legal outcomes, but on the form of the rules that generate those outcomes. Formalism is a recognition that law must appear in some form and that law is an act not only of social control but of social communication. By acknowledging the view of the law that formalism represents we can uncover previously unidentified meaning in law, lawmaking, and adjudication.

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Priel on Law and Digestion: A Brief History of an Unpalatable Idea

Dan Priel, Osgoode Hall, has published Law and Digestion: A Brief History of an Unpalatable Idea. Here is the abstract.

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this short essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. But I also show the idea is older than the legal realists. One finds casual references to it in academic literature and newspapers from around that time, which suggest that the phrase reflected something of a received, if cynical, wisdom. Although none of the realists ever studied the question seriously, I further explain how it fit within their views on law, as well as how it might be tested today.

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Macaulay on the New Legal Realism: Upacking a Proposed Definition @WisconsinLaw

Stewart Macaulay, University of Wisconsin Law School, has published New Legal Realism: Unpacking a Proposed Definition at 6 UC Irvine Law Review 149 (2016). Here is the abstract.

What is “new legal realism?” How, if at all, does it differ from work in law and society? Does it have much to do with concerns of law professors? Where does it stand in the law school work now and in the immediate future? What, if anything, do we gain by turning toward this approach to legal study?

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Tamanaha on the Combination of Formalism and Realism

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, has published The Combination of Formalism and Realism as Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Here is the abstract.

For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.

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Holtermann @JakovoHoHo on Getting Real or Staying Postive: Legal Realism(s), Legal Positivsm, and the Prospects of Naturalism in Jurisprudence

Jakob v. H. Holtermann, Univesrity of Copenhagen, iCourts, Centre of Excellence for International Courts, has published Getting Real or Staying Positive: Legal Realism(s), Legal Positivism and the Prospects of Naturalism in Jurisprudence as 29 Ratio Juris 535 (2016). Here is the abstract.

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward‐looking and backward‐looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism but also their equally different potentials as starting points for naturalizing jurisprudence.

The full text is not available for free download from SSRN.

Getman-Pavlova on The Founders of 16th Century Belgian Realism in Private International Law

Irina Getman-Pavlova, National Research University Higher School of Economics (Moscow) has published The Founders of 16th Century Belgian Realism in Private International Law Doctrine as Higher School of Economics Research Paper No. WP BRP 64/LAW/2016. Here is the abstract.

This article restores to academic circulation the names of representatives of the 16th century Belgian School of Realism, who have been unjustly forgotten in modern Private International Law [PIL] doctrine — Nicolas Everhard, Pieter Peck and Johannes à Sande. These scholars are the founders of the Belgian-Dutch theory of conflicts of laws which anticipated the classic Dutch “comity” doctrine and provided the framework for the Anglo-American doctrine of the regulation of international civil relations. The theory of Belgian realism was first outlined by Everhard, Peck and Sande and was formed on the theory of statutes — the sole doctrine of PIL for 500 years. Belgian Realism is a separate direction in the theory of statutes which triggered the process of a strongly territorial concept of conflict resolution between choice of law rules of different states. However, despite their outstanding contribution to the legal practice and doctrine of their time, these scholars are not known to modern jurisprudence. The article concludes that Everhard, Peck and Sande developed the choice of law rules which are now adopted by modern legislation; moreover, their works may serve to develop international comity doctrine, which has been adopted by modern PIL.

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Schmidt on German Free Lawyers, American Legal Realists, and the Transatlantic Turn to "Life," 1903-1933

Katharina Isabel Schmidt, Yale Law School, has published Law, Modernity, Crisis: German Free Lawyers, American Legal Realists, and the Transatlantic Turn to "Life," 1903-1933, at 39 German Studies Review 121 (2016). Here is the abstract.

Scholars have long recognized American jurists’ idiosyncratic commitment to a prudent, pragmatic, and political style of legal reasoning. The origins of this style have been linked to the legacy of the most American legal movement of all: the realists. Conversely, German jurists’ doctrinal, idealistic, and apolitical approach can be tied to the relative failure of Germany’s equivalent movement: the free lawyers. How to account for the seemingly inverse fate of realistic jurisprudential reform projects on both sides of the Atlantic? In this paper I employ transnational history to shed light on this particular instance of German-American divergence.

Here is a link to the article via Project Muse.

Barzun on Jerome Frank, Lon Fuller, and Romantic Pragmatism

Charles L. Barzun, University of Virginia School of Law, has published Jerome Frank, Lon Fuller, and a Romantic Pragmatism as Virginia Public Law and Legal Theory Research Paper No. 6. Here is the abstract.

Jerome Frank and Lon Fuller are not frequently classed together in discussions of twentieth-century legal thought. Although they both wrote extensively about the nature of law and adjudication over roughly the same period of time (1930s-1950s), they are typically characterized as standing on opposite sides of the issues that matter most in legal theory. Frank is these days seen as an “extreme” realist, who thought judges decided cases on the basis of irrational biases, while Fuller is best known for being a critic of realism, a defender of natural law, and an influential member of the Legal Process school of legal thought, which is itself seen as a response to precisely those excesses of realism that Frank is said to epitomize. In this essay, I argue that when we place these two thinkers on opposite sides of the traditional lines drawn in legal theory – between realism and process theory, natural law and positivism, instrumentalism and formalism – we miss something important, and importantly similar, in their views about law, adjudication, and human knowledge. In particular, both thinkers maintained (1) that the human self was constituted by a mix of impulses, intuitions, emotions, motives and purposes, only some of which are conscious but all of which shape how the mind perceives the external world; (2) that such motives in judges are activated by the facts of particular cases in a way that can, at least sometimes, serve as the basis for just decisionmaking; and, finally, (3) that the first two observations provide a foundation for legal knowledge of the sort judges properly rely on when deciding cases. I conclude by suggesting that we might think of these common themes as reflecting a “romantic” strain of legal and philosophical pragmatism.

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Bryant Garth and Yves M. Dezalay on Legal Theory, Strategies of Learned Production, and Learned Law

Bryant Garth, University of California, Irvine, Southwestern Law School, and American Bar Foundation, and Yves M. Dezaley, French National Center for Scientific Research (CNRS), are publishing 'Legal Theory,' Strategies of Learned Production, and the Relatively Weak Autonomy of the Subfield of Learned Law in In Search of Contemporary Legal Thought (Justin Desautels-Stein and Christopher Tomlins, eds., Cambridge University Press), Forthcoming). Here is the abstract.

This chapter focuses on the relationship between learned or scholarly law and economic and political power. It begins by introducing Pierre Bourdieu’s writings on the role of law and legal theories, which provide a general sociological framework, and then it draws on that approach to examine the role of learned law in the United States. The first part examines a key period in the genesis of the U.S. legal field and its hierarchies -- the outsourcing of the reproduction of lawyers and the compilation of legal knowledge to the law schools late in the nineteenth century. Law professors and their theories were quite marginal in the US legal field at that time. The second part examines the Legal Realist “coup” of the law professors against the dominance of the elite judges and corporate lawyers in the 1930s. The third part discusses similar challenges to the place of elite lawyers and judges in the 1960s from the left and more recently from the right. In each case, we show that legal academics and their theories are part of a larger story of adaptation and relegitimation of the enduring hierarchies of the U.S. legal field. A major theme, which these histories make clear, is the relatively weak autonomy of the field of learned law in the United States. Within this larger story, however, we point out the factors that created what looks in retrospect like a “golden age” of academic theory in the 1980s.

Download the essay from SSRN at the link.

Legal Realism As the Basis For a Law School Curriculum

Robert Rubinson, University of Baltimore School of Law, has published The Holmes School of Law: A Proposal to Reform Legal Education Through Realism at 35 Boston College Journal of Law & Social Justice 33 (2015).

This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about “law in fact” — how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all legal education ignores law as experienced by low-income people. The article concludes with responses to anticipated objections to the proposal.

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The New Legal Realist Approach To International Law

Gregory Shaffer, University of California, Irvine, School of Law, has published The New Legal Realist Approach to International Law at 28 Leiden Journal of International Law 189 (2015) as part of a symposium on new legal realism. Here is the abstract.

The new legal realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practiced, and changes over time. The article addresses the jurisprudential roots of the new legal realism, its core attributes, and six important components in the current transnational context. In the pragmatist tradition, the new legal realism is both empirical and problem-centered, attending to both context and legal normativity. What is new is the rise of transnational activity that gives rise to an enlarged scope of transnational problem solving through international law in radically new ways across areas of law, and the growth of empirical study of these phenomena. The article concludes by addressing the potential risks of the new legal realist approach in terms of scientism and relativism, and it responds to them.

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The Continuing Influence of Legal Realism

Brian Leiter, University of Chicago, has published Legal Realism and Legal Doctrine as University of Chicago Public Law Working Paper No. 528. Here is the abstract.

In this contribution to the symposium on "The New Doctrinalism," I argue that American Legal Realists did not reject doctrine, because the Realists did not reject the idea that judges decide cases in accordance with normative standards of some kind: “doctrine” after all is just a normative standard about what should be done, but one formulated and made explicit by a statute or a court or a treatise. A judge who decides cases based on the norm “this breach of contract is efficient” still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.

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Linking Legal Realism and Natural Law

Dan Priel, York University, Osgoode Hall, and Charles L. Barzun, University of Virginia School of Law, have published Legal Realism and Natural Law in Law, Theory and History: New Essays on a Neglected Topic (Maksymilian Del Mar & Michael Lobban eds.; 2015) (forthcoming). Here is the abstract.

The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on the jurisprudential scene, legal realism was savagely attacked by proponents of natural law theory. To this day legal realism is depicted as a modernist, critical, at times almost nihilist approach to law, the polar opposite of the ancient natural law theory that traces its roots to Greek and Roman philosophy, and insists on unchanging objective values. And yet, two of the most famous legal realists, Karl Llewellyn and Jerome Frank, expressed in some of their writings more than a passing endorsement of natural law theory. The purpose of this essay is to try and explain this seemingly odd aspect of their work and in this way help in reassessing their work. We do so by explaining how they understood natural law and how they incorporated it in their work. Though they did not understand the term in precisely the same way, for both of them natural law was connected to the values of the community, which both of them thought were central to understanding law, for explaining how it could remain relatively certain, and ultimately, how it derived its authority.

Download the essay from SSRN at the link.

Re-Examining Blackstone's "Commentaries"

Jessie Allen, University of Pittsburgh School of Law, has published Law and Artifice in Blackstone's Commentaries in volume 4, issue 3, Chapter One, of Journal of Law: A Periodical Laboratory of Legal Scholarship (Summer 2014). Here is the abstract.

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

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