Some Legal Realism About Legal Theory

4 Pages Posted: 28 Feb 2018 Last revised: 2 Mar 2018

See all articles by Jeremy Kessler

Jeremy Kessler

Columbia University - Law School

David Pozen

Columbia University - Law School

Date Written: June 29, 2017

Abstract

This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).

Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of their persistence may offer a compelling alternative to increasingly convoluted internal explanations. The former kinds of explanation cannot decisively defeat the latter, but they do give the legal community a choice. Barzun would prefer to foreclose this choice: while sociologists and political scientists might be expected to prefer a given external explanation, he submits, the puzzled lawyer "likely will (and probably should) adopt the internal account."

Barzun certainly has history on his side in assuming that many in the legal community will be inclined toward internal accounts of theory persistence—believing that those prescriptive theories that enjoy long lives do so in virtue of their "intrinsic merits" or "rightness." Yet a dissenting tradition of lawyers, judges, and legal scholars, from early-twentieth-century legal realists to late-twentieth-century crits, has sought to trouble this professional panglossianism. It is our hope that Working Themselves Impure will prove useful to those who might wish to do so in the future.

Keywords: legal theory, legal history, theory change, originalism

Suggested Citation

Kessler, Jeremy and Pozen, David E., Some Legal Realism About Legal Theory (June 29, 2017). Columbia Public Law Research Paper No. 14-584. Available at SSRN: https://ssrn.com/abstract=3126412

Jeremy Kessler

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
9175486610 (Phone)

David E. Pozen (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/david-pozen

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