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Leiter on the Legal Realists


Michael Steven Green


William & Mary Law School

May 24, 2011

William & Mary Law School Research Paper No. 09-98
Law and Philosophy, Forthcoming

Abstract:     
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.

Number of Pages in PDF File: 39

Keywords: legal realism, prediction theory of law, Brian Leiter, naturalism, legal indeterminacy, Walter Wheeler Cook, Jerome Frank, Felix Cohen, jurisprudence, philosophy of law

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Date posted: May 31, 2011  

Suggested Citation

Green, Michael Steven, Leiter on the Legal Realists (May 24, 2011). William & Mary Law School Research Paper No. 09-98; Law and Philosophy, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1851510

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Michael Steven Green (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-7746 (Phone)
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