Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems

Abstract

This article proposes that legal research instruction accept a definition of law that combines realism and rhetoric, namely, what the officials of the law and any other relevant decisionmakers do when faced with a dispute?' These decisionmakers (relevant audiences) include not only judges, juries, and police officers, but also attorneys, the parties, and other critical players, such as complaining witnesses who have some power to influence the outcome of the case or transaction. This article does not put forward realism as the best or as a universal philosophy of law. Indeed, as a legal philosophy, realism is flawed, because it implies that the rule of law can be underemphasized if not disregarded altogether. Realism, especially when coupled with rhetoric, however, helps the law student (and for that matter the advocate and counselor) navigate the legal system and lawyering as a profession better than any other school of legal thought.