38 Pages Posted: 29 Oct 2002
This essay sets out the main elements of the revisionary and philosophical interpretation of the jurisprudence of American Legal Realism that I have developed in a series of articles over the last decade. This reading emphasizes the commitment of all the Realists to a core descriptive claim about adjudication (judges respond primarily to the underlying facts of the cases, rather than to legal rules and reasons); shows how the Realists divide in to two camps over the correct interpretation of this "core" claim (the Idiosncyrasy Wing of Frank, and the Sociological Wing of Llewellyn, Oliphant, Moore, Green, and the vast majority of Realists); demonstrates the connection of the Sociological Wing of Realism to the Realist project of law reform, including the work of the American Law Institute; examines and distinguishes the Realist arguments for the indeterminacy of law from Critical Legal Studies arguments; and shows how the Realists lay the foundation for the program of a "naturalized" jurisprudence, in opposition to the dominant "conceptual" jurisprudence of Anglophone legal philosophy. The revisionary reading also debunks certain popular myths about Legal Realism, like the following: the Realists believed "what the judge ate for breakfast determines the decision"; a critique of the public/private distinction was a central part of Realist jurisprudence; and the Realists were committed to an incoherent form of rule-skepticism.
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By Brian Leiter
By Brian Leiter