The Fake Revolution: Understanding Legal Realism
Washburn Law Journal, Vol. 47, No. 2, 2008
Abstract: Legal interpretation in the United States changed dramatically between 1930 and 1950. The Great Depression and World War II unleashed radical critique (particularly prior to the war). Legal realism proposed radical new methods of legal interpretation to try to meet the challenges of global depression and global war. The new legal methods proposed by realism at first seemed to indicate a new legal order. In fact, they only preserved the old order, protecting it from fundamental change. Thus, the same problem, cyclical economic downturn triggering war for resources and market share recurred in Vietnam. Just as the depression and world war triggered realism, so too did Vietnam spark the Critical Legal Studies movement. Once more, much radical discontent led nowhere. Yet again, economic downturn has triggered a war for resources and market-share - Iraq. New legal movements will arise out of this war too. If they are to be effective, they must understand the efforts and errors of their elders. This essay presents a retrospective of past legal discourse intended to help contemporary scholars situate their ideas contextually as part of a recurring struggle.
Table of Contents:
I. The Judicial "Revolution"
A. The Great Depression: The Judicial Revolution
B. Legal Realism
C. The Realist Rejection of "Formalism"
II. Post War: Co-opting Radicalism to Serve Global Hegemony
A. Law and Economics
B. Legal Process Interest Balancing
Number of Pages in PDF File: 26
Keywords: legal realism, formalism, positivism, natural law, legal theory, philosophy of law, jurisprudence, theory, clt, classical legal thought, contemporary legal thought, the social, court packing, Roosevelt, history, legal history
JEL Classification: N42, K39, K49, K10, K20, K40, B13, B14, B24, B25Accepted Paper Series
Date posted: April 29, 2008
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