American Legal Realism Research Articles

Law, Modernity, Crisis: German Free Lawyers, American Legal Realists, and the Transatlantic Turn to “Life,” 1903–1933

Scholars have long recognized American jurists’ idiosyncratic commitment to a prudent, pragmatic, and political style of legal reasoning. The origins of this style have been linked to the legacy of the most American legal movement of all: the realists. Conversely, German jurists’ doctrinal, idealistic, and apolitical approach can be tied to the relative failure of Germany’s equivalent movement: the free lawyers. How to account for the seemingly inverse fate of realistic jurisprudential reform projects on both sides of the Atlantic? In this paper I employ transnational history to shed light on this particular instance of German-American divergence.

You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions

This article focuses on the brilliance -- or lack thereof -- of how each side framed the issues in certain hotly contested recent United States Supreme Court decisions. In other words, the article does not challenge the correctness of the Supreme Court decisions. Rather, the article focuses on the techniques used to control the lens by which an issue is analyzed, in particular, use of emotive appeal. As a practical matter, there often are two ways to legitimately frame an issue. In this circumstance -- when both sides could be correct -- why is it surprising that pathos might tip the scales? Cognitive science suggests that powerful emotional appeals certainly may play a role in judicial decision making, perhaps even at a subconscious level. Aristotle realized this long ago and American legal realists have acknowledged this for at least a century. But even if it can be assumed that emotions never sway a judicial decision, there is a second very practical reason to include pathos in judicial filings. This article demonstrates that the “Hellos” -- the emotional hooks set forth in the introductory paragraphs of briefs -- often are showcased front-and-center in the resulting Supreme Court opinion. This is so even when these hooks have nothing at all to do with the merits of the case. To prove this point, this article examines the “Hellos” in five recent hotly contested five-to-four Supreme Court decisions: Obergefell v. Hodges (same-sex marriage); Adoptive Couple v. Baby Girl (parental rights under the Indian Child Welfare Act); ATT Burwell v. Hobby Lobby Stores, Inc. (religious freedom/abortion rights); and Glossip v. Gross (death penalty/drug protocol). The Obergefell discussion also includes analysis of the impacts of the “Hellos” in United States v. Windsor, 133 S.Ct. 2675 (2013) (DOMA) and Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (Prop. 8). This article then compares the “Hellos” to the Supreme Court decisions. The parallels are stunning.This article ends with ten concrete tips for practitioners on how to craft powerful “Hellos.” The advice applies both at the trial court and appellate level. This part also explores the need to go beyond relying upon stock techniques and to instead dig deeper by taking the pulse of ever-changing social norms regarding what is fair and just. That is where the power of persuasion lies. Now, more than ever, practitioners must strive to win the reader over both in the heart and in the mind. It just might matter.

Law as an Autonomous Discipline

The idea of autonomy of law applies in distinct but related ways to legal reasoning, judicial reasoning, legal scholarship, and legal education. Additionally, claims about the autonomy of law can be understood as descriptive, analytical, or prescriptive. In this article, the different permutations of autonomy of law claims are considered in the context of various approaches to law, including American legal realism, the legal process school, law and economics, and critical legal studies. American legal scholarship has gone through a period of overestimating the autonomy of legal reasoning, at the time of the legal formalists, to today, when the autonomy of legal reasoning is generally underestimated. Law's distinctive approach to reasoning and decision-making derives from the type of practice law is: a behavior-guiding practice, where the guidance is done primarily through general rules, and the rules are interpreted and applied by a hierarchical court system that gives precedential weight to earlier decisions. Within this sort of structure, legal discourse is distinctive, but can also be seen as merely a particular application of moral and political reasoning, rather than entirely abstracted from such reasoning.

A Short Note on Digestive Realism

The most extreme form of legal realism says that judicial decisions depend on what judges had for breakfast. It is unclear whether any of the American realists really claimed anything of that sort. Sometimes Jerome Frank is charged with that extreme view, which is not surprising given that Frank is generally considered to be the most radical, skeptical and cynic among those realists. It has been said in fact that critics of American legal realism have promoted a “Frankification” of this movem...

Realism about the Nature of Law

AbstractLegal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non‐cognitivists, and who maintained that conceptual analysis (in a fairly broad sense) is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti‐metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non‐cognitivism on the part of the Scandinavians and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, (iii) that the objection to non‐naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vi) that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms.

Constitutional Law: Critical and Comparative

This brief essay serves as an introduction to a volume of studies by Latin American scholars of constitutional law and theory responding to themes in my work. It outlines the jurisprudential and historical-political background against which my work developed, stressing the important roles played by American Legal Realism and the politics of the 1960s in shaping my thinking. The essay explains how my interest in populist constitutional law and dialogic forms of constitutional review emerged from the same background, but was strengthened by an interest in comparative constitutional law that I developed in the 1990s.

David Ingersoll, Behavioralism and the Modern Revival of Legal Realism

David Ingersoll’s essay “Karl Llewellyn, American Legal Realism and Contemporary Legal Behavioralism” is a significant, but neglected contribution to our understanding of legal realism in the United States. This article argues that it first anticipates the shape of legal realism’s revival today and shows that Ingersoll was ahead of his time. The once dominant school of legal realism had become a much maligned theory of law when this essay was first published. Ingersoll identifies two varieties of legal realism and most critics focus on only one of them. He argues that legal realism should be revived if it develops its second variety often overlooked which accepts rule skepticism and recognizes the importance of social psychology to predicting legal outcomes more reliably.

Richard Posner summarizes: Legal realism as the response to the challenges of today

Richard Posner, law professor at the University of Chicago and an American federal judge, one of the founders of economic analysis of law is among the greatest living representatives of contemporary American jurisprudence. This paper begins with the analysis of the influences of Posner's life on his theoretical orientation. Further on, the author shines a light on Posner's pragmatic, anti-formalistic approach and tendency to use economic analysis to explain judicial behavior. For that purpose, Posner uses ideas developed by American legal realism. Nevertheless, Posner distances himself from classical American legal realism, striving to create compromise between formalism and realism. Therefore, Posner takes centrist position, the position of 'balanced' realism. Though Posner tries to follow the middle way between extremes, in the light of contemporary challenges, most of all technological, he perceives the future in the realistic approach. The author claims that the Posner's pragmatic spirit, formed in his family and developed by his education and profession (his experience), had prevailing influence on his choice of legal realism in his late years. Particularly today, when life is much 'faster' than law, the judges are those who have to adapt the law to life (not only in common law countries). Therefore it seems that really 'the path forward is the path of realism'.

European New Legal Realism and International Law: How to Make International Law Intelligible

International law remains in many ways a challenge to legal science. As in domestic law, the available options appear to be exhausted by either internal doctrinal approaches applying a sui generis legal method in order to identify valid law, or external reductionist approaches applying more general empirical methods, predominantly taken from the social sciences. The claim of this paper is that while these major positions obviously provide interesting insights, none of them manage to make international law (or national law for that matter) intelligible in a broader sense. Instead, the paper argues for a New Legal Realist approach to international law, which accommodates the so-called external and internal dimensions of law in a single more complex analysis, which takes legal validity seriously but as a genuinely empirical object of study.The way the paper constructs this position within New Legal Realism is however not via the well-trodden path of American Legal Realism, but rather by identifying a different, distinctively European path. The approach takes as its primary inspirations Weberian sociology of law and Alf Ross’ Scandinavian Legal Realism and combines them with insights originating from Bourdieusian sociology of law. While these prominent authors are typically viewed as belonging to very different intellectual traditions, the paper demonstrates how there is in fact a distinct intellectual trajectory from Weber over Ross to Bourdieu and European New Legal Realism with regard to developing a rigorous legal science. This approach shares some of its roots with American New Legal Realism as articulated in recent years by a number of scholars, notably via the overall empirical research interest, yet it articulates a different position particularly with regard to the crucial epistemological question of what is legal science. This approach – which is dubbed European New Legal Realism – is however not simply an exegesis of the possibilities of knowledge on law, but rather an operational program for better explaining international law and its institutions.

The Paradoxes of Public Philosophy

The idea of “public philosophy” — that is, philosophy as contributing to questions of moral and political urgency in the community in which it is located — is paradoxical for two reasons. The first is that normative philosophy has no well-established substantive conclusions about the right and the good. Thus, philosophers enter into moral and political debate purporting to offer some kind of expertise, but the expertise they offer can not consist in any credible claim to know what is good, right, valuable, or any other substantive normative proposition that might be decisive in practical affairs. But philosophers — at least those in the broadly Socratic traditions — do bring to debate a method or way of thinking about contested normative questions: they are good at parsing arguments, clarifying the concepts at play in a debate, teasing out the dialectical entailments of suppositions and claims, and so on: Socratic philosophers are, in short, purveyors of what I call “discursive hygiene.” This brings us to the second paradox: although philosophers can contribute no substantive knowledge about the good and the right, they can contribute discursive hygiene. But discursive hygiene plays almost no role in public life, and an only erratic, and highly contingent, role in how people form beliefs about matters of moral and political urgency. I call attention to the role of two factors in moral judgment: non-rational emotional responses and “Tribalism,” the tendency to favor members of one “tribe” at the expense of others. The prevalence of emotional responses, especially tribalist ones, undermines the efficacy of discursive hygiene in public life. I conclude that the role for public philosophy is quite circumscribed, though public philosophers should learn from their cousins, the lawyers, who appreciate the role that rhetoric, beyond discursive hygiene, plays in changing moral attitudes and affecting action. Along the way, I discuss Stevenson’s emotivism, what we can learn from Peter Singer’s schizophrenic role as a public philosopher (lauded for his defense of animal rights, pilloried for his defense of killing defective humans), evolutionary explanations of tribalism, the lessons of American Legal Realism for the possible relevance of discursive hygiene, and Marx and Nietzsche as “public” philosophers.

Taking Commercial Law Seriously: From Jurisprudence to Pedagogy

The Uniform Commercial Code (the Code) is the singular expression of a jurisprudential vision. As the conventional wisdom suggests, American Legal Realism was both a reaction to Legal Formalism' as well as a striking vision of the role of law in modern society. The Code was, of course, fashioned in the image of one of its principal architects, Karl N. Llewellyn. No jurisprudence of the Code is possible without some account of Llewellyn's jurisprudence and the realism he fostered in his great legislative achievement.

Defending Legal Realism: A Response to Four Critics

My recently published book, Reconstructing American Legal Realism & Rethinking Private Law Theory (Oxford University Press, 2013), seeks to revive our understanding of law as a set of institutions accommodating three sets of constitutive tensions: power and reason, science and craft, and tradition and progress. This issue of Critical Analysis of Law honored me with the publication of thoughtful and generous book reviews by Alan Brudner, Dan Farbman, Joseph Singer, and Laura Underkuffler. This short essay reflects upon their insightful and important observations and attempts to provide some answers to their interesting and intriguing critiques of my account. I begin with some observations on the relationships between law and politics and on the nature of legislation. I then turn to address the interplay between idealism and reality in law and legalese as well as the ways in which legal theory can be distinctive and at the same time both critical and synthetic. I conclude with some comments on the nature of private law and on the way it serves our right of self-authorship.

Eliezer Goldman and the Origins of Meta-Halacha

Eliezer Goldman (1918–2002) had a significant, though seldom recognized, impact on the way that contemporary religious Jews deal with the implications of modernity. Perhaps his most far-reaching contribution was his philosophy of halacha. Goldman was hardly alone among religious thinkers in proposing halachic responses to the constitutional, technological, and ethical dilemmas posed by the establishment of the State of Israel. He was, however, distinctive in two respects. First, he was one of the few Jewish thinkers in the mid-twentieth century who mapped out the basics of a halachic jurisprudence in a Western idiom. To be sure, others had described certain aspects of Jewish law in Western terms.1 However, Goldman was rare in that he articulated a broad philosophy of halacha in an attempt to explain the mechanisms of halachic change. To do so, he showed that halacha is made up not only of concrete rules but of abstract principles that guide its development. To describe these principles, he invented the term “meta-halacha,” that continues to enjoy great currency among contemporary Jewish thinkers.2 Second, Goldman was unusual among religious Zionists in that his thought was deeply influenced by streams in twentieth-century American thought. In particular, his theology and his halachic jurisprudence drew heavily on American philosophical pragmatism and legal realism. This gave Goldman’s writing an idiosyncratic twist and contributes to its ongoing resonance with the contemporary reader.

What can Mexican law schools learn from the American legal realists?

This article offers (a) a basic exposition of what some members of a certain generation of legal scholars said with regards to legal education; and (b) an effort to link those ideas with a specific issue of legal education in general, and Mexican legal education in particular. With regards to these points, the idea is to go beyond the traditional approach to theory and practice, i.e., that theory is independent or even irrelevant in some cases with regards to matters of practical knowledge. Contrary to this approach, it is assumed that there is a strong relationship between theory and practice, and that they both complement each other. The purpose is to show: (a) that the ideas of the legal realists regarding training for practice during legal education is useful for general legal education; (b) that the implementation of some of these ideas in Mexican legal education would invariably help to graduate more conscious and prepared legal professionals; and (c) that the implementation of these ideas does not require much effort, only the willingness of universities and faculty to go beyond traditional, localist approaches to legal education, towards a more realistic view.

Beyond Constitutional Dogmatics

This article investigates whether and to which extent current (Belgian) dogmatic constitutional scholarship still squares with the core aspiration of dogmatics, that is to obtain knowledge and representation of valid law. For constitutional scholarship faces a problem, which has been alluded to by American legal realists before, namely that scholarship does not succeed in thematizing the liberties of the judge as such. This unboundedness – judicial playing room, so to speak – nonetheless exerts an important and growing influence on “legal realization” by and through the judge. If we want to develop constitutional scholarship, which duly recognizes that legal knowledge depends on judicial decisions, then (dogmatic) constitutional scholarship should be (further) opened up and integrated with insights from other disciplines, without loosing its audience. In this article, I try to propose a tentative model to do as much, by situating the judges on a complex field of tension between rule of law values and pragmatism. I apply the model to some Belgian constitutional case law regarding federalism.

Rule by Law or Rule of Law?

This article examines some aspects of the distinction between the rule of law and rule by law, elucidating those concepts by focusing on their role in political systems with a dominant political party. After criticizing accounts in which the rule of law serves some instrumental purposes of the dominant party, such as promoting foreign investment, the article turns to more normative accounts of the rule of law. Drawing on American Legal Realism, it argues that standard components of the rule of law such as coherence and intelligibility do impose some normative constraints on dominant party behavior. Examining the concept of intelligibility in more detail, though, shows that those constraints are relatively weak, and depend importantly on the views prevailing in the legal profession about what a decision according to law is.

Global Situation Sense

William Twining comprehensively evaluated the challenges that a contemporary context of globalisation poses for legal scholarship in his 2009 Montesquieu Lecture at Tilburg Law School. This article connects this lecture to his previous work on American Legal Realist Karl Llewellyn in order to construct a notion of ‘global situation sense’ that might be appropriate for legal professionals who face similar challenges in the globalisation context of their work. In referring to the work of ethnomusicologist Alan Lomax, Twining's globalisation context is described as a context of opportunity arising from the variety of diverse legal systems interacting. Subsequently, six characteristics of a ‘global situation sense’ are presented, providing legal professionals with a structure for engaging with global legal developments in their local practices. The notion of ‘global situation sense’ is illustrated with reference to the ‘Accord on Fire and Building Safety in Bangladesh’.

The Legacy of Legal Realism

In what follows, I will examine two such strains of dominant contemporary legal thought: American Legal Realism, as exemplified by the work of two prominent jurists, Oliver Wendell Holmes, Jr. and Benjamin Cardozo, and the legal positivism of British philosopher H.L.A. Hart. In doing so, I will attempt to show how both projects evidence a dissatisfaction with the much of the history of legal philosophy, rejecting the metaphysical and austere academic tendencies of prior schools of jurisprudence in favor of an emphasis on practice and social reality. Crucially, however, I will argue that while Hart’s understanding of legal positivism in The Concept of Law has commonly been understood as dealing legal realism a fatal criticism (that, in failing to focus on the ‘internal point of view,’ it fails to provide a convincing answer as to the question of the nature of law), there is still much of value in the legal realist project. Even if one accepts Hart’s criticism of Holmes’ prediction theory of law, as Hart understands, there remains in both Holmes’ and Cardozo’s work a commitment to understanding the process of judicial adjudication that stands as a novel and significant contribution to jurisprudential discourse.

Why Legal Positivism?

This short paper will be presented at a panel on Positivism: For and Against? at the annual meeting of the Association of American Law Schools in New Orleans, January 9, 2010. It attempts to identify the theoretical considerations that explain why legal positivism is the dominant view among legal philosophers. Three are identified: (1) positivism gives the best account of the ordinary understanding of law; (2) its account of law is the one deployed fruitfully in all empirical social science; and (3) it does not involve incredible or controversial metaphysical commitments. The paper concludes by noting that the competitors to legal positivism have narrowed considerably in recent years. American Legal Realism (as I have argued elsewhere) depends on a positivist theory of law, rather than being in competition with it. The most sophisticiated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and simply proposes changing the subject. And Dworkin's theory fails along the three dimensions of theoretical adequacy noted. The paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions. Unfortunately, so do the positivist theories of Hart and Raz. Only atrocious public relations for legal positivism--aided and abetted by decades of misrepresentations by Dworkin – has led so many casual consumers of the jurisprudential literature to think otherwise. Thinking morality relevant to constitutional adjudication is no reason not to be a legal positivist.

Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. By TuranKayaoğlu. New York: Cambridge University Press, 2010. 237 pp., $90.00 hardback (ISBN-13: 978-0-521-76591-6).

Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. By Turan Kayaoglu. New York: Cambridge University Press, 2010. 237 pp., $90.00 hardback (ISBN-13: 978-0-521-76591-6). Turan Kayaoglu's new book, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China , addresses the interesting and ever-topical questions of legal imperialism and extraterritoriality. Legal imperialism is defined as “the extension of a state's legal authority into another state and limitation of legal authority of the target state over issues that may affect people, commercial interest, and security of the imperial state” (p. 7); and extraterritoriality is understood as a “legal regime whereby a state claims exclusive jurisdiction over its citizens in another state” (p. 2). The book explicitly focuses on the emergence, function, and abolition of Western extraterritorial courts in non-Western states during the eighteenth and nineteenth centuries and, using a cross-cultural comparative analysis of these court systems in Japan, the Ottoman Empire, and China, advances a theory of extraterritoriality. The extraterritorial courts were developed from the imperial model of the hegemon of the time, Great Britain, which, in turn, was founded on ideals of Legal Positivism. In addition, based on the material on extraterritoriality negotiations, Kayaoglu provides an alternative perspective on the development of sovereignty in international society during the nineteenth century by integrating Western colonial expansion and jurisprudence with non-Western political development and legal institutionalization (cf. Bull and Watson 1984). In the concluding chapter (pp. 196–303), the transition from British to American forms of legal imperialism in the post-World War II international society, founded on American Legal Realism, is also briefly …