Legal Realism and Legal Doctrine

18 Pages Posted: 4 Apr 2015 Last revised: 10 Apr 2015

Brian Leiter

University of Chicago

Date Written: April 2, 2015

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.

Keywords: American Legal Realism, American Law Institute, Charles Alan Wright

Suggested Citation

Leiter, Brian, Legal Realism and Legal Doctrine (April 2, 2015). University of Pennsylvania Law Review, 2015, Forthcoming; U of Chicago, Public Law Working Paper No. 528. Available at SSRN: https://ssrn.com/abstract=2589327

Brian Leiter (Contact Author)

University of Chicago ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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