American Legal Realism Research Articles

The Gay Agenda

The Gay Agenda argues that the current gay rights agenda has been overly determined by the culture war and calls for a deliberate step outside of culture war discourse in order to see law reform possibilities that have largely been obscured. When anti-gay forces speak in terms of traditional family values, the paper observes, pro-gay rejoinders tend to come in the form of rights claims accompanied by rhetorical efforts to depict the gay family as morally indistinct from an idealized version of the heterosexual family (i.e., monogamous, bourgeois, and more about love than sex). These dual strategies of rights - especially equality - and normalization have serious costs that have gone under-recognized by the architects of the contemporary gay rights movement. Much of the paper is dedicated to illuminating those costs. The remainder of the paper proposes concrete possibilities for reconstructing a law reform agenda. This part draws on the insights of American Legal Realism, Critical Legal Theory and Queer Theory, which have something real and valuable to offer the gay rights movement - if what participants in that movement want is to combat sexual moralism and to ameliorate the full range of hardships faced by persons associated with marginal sexual or gender identities or practices. The proposed agenda described in this part is less consumed with achieving formal equality between gay and straight people and more interested in using law to create the best possible conditions against which a broad array of people can make choices about how to organize their erotic and domestic lives.

How Blackstone Became a Blackstonian

The bogeyman of institutions and theories that make a place for community in property law is the "Blackstonian conception" of property, based on Blackstone’s famous identification of property with "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." Yet, as anyone who has even skimmed Blackstone’s Commentaries quickly realizes, it is clear that the great expositor of the common law did not believe that this absolutist and individualist conception squared with the actual institution of property found in English law. Replete with descriptions and justifications of doctrines that recognized and enforced a complex web of individual and community interests in land and other resources, Blackstone’s account seems much closer to the "bundle of rights" approach popularized by the American legal realists than to the "absolute dominion" view associated with his name. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people? This Article seeks, first of all, to explain why Blackstone would first characterize property as "that sole and despotic dominion," and then go on to illustrate, over several hundred pages, the falsity of this definition. The primary goal of the Article, though, is to examine the ways in which Blackstone was invoked by later jurists as an authority for property-law propositions. In particular, the Article examines how Blackstone has been cited by English and American courts and writers, whether in connection with the "sole and despotic dominion view" or rather in support of doctrines more in keeping with a more complex view of property. Finally, it proposes an answer to the question set out in the title, identifying the historical context and motivations for the identification of the absolute, individualistic view of property with Blackstone in particular.

Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law

A conscientious reading of the rich historical literature on the American Legal Realist movement would provide no suggestion that any of the academic writers and other commentators in that movement ever gave the slightest attention to international law.1 It is entirely understandable that the Realists should be remembered as having been concerned exclusively with the analysis and reform of domestic jurisprudence and legal process; for there was only one exception, in this regard, and this was the Stanford law professor Joseph Walter Bingham. Bingham (1878-1973) is a figure who has been almost entirely neglected by historians of legal thought.2 And yet he was one of the earliest American legal commentators to promote an iconoclastic, reformist approach to the common law and American constitutional law. His writings in the 1910s and 1920s, as will be discussed further here, were important early-day contributions to the development of what would become the central canon of Legal Realism. His uniqueness among the Realists rests in the fact that he would go on to play a prominent part in contending for a basic reform in international law during the decades that followed.

Performing Power: The Deal, Corporate Rule, and the Constitution of Global Legal Order

This article presents a stylized account of legal work involved in doing a corporate deal transnationally, drawing inspiration from the work of American legal realist, Robert Hale. In so doing, it seeks to show that legal institutions on which transnational corporate power depends are far more plastic, discordant, and irresolute than commonly recorded. By tethering global legal order to the decisive interiority of the transnational corporation, while taking that interior for granted, recent accounts (such as those of Michael Hardt and Antonio Negri or A. Claire Cutler) may do more to fortify than query the contemporary ‘rule’ of global capital.

Legal realisms: on law and politics

The focus of this work is the issue of whether, and to what extent, the nature of the law is affected by politics, has been taken up by the American and Scandinavian legal realists. By the very fact of their being products of␣the socio-political conditions of the most recent century, the American and Scandinavian legal realisms are the movements that have most explicitly and systematically brought to the surface one particular characteristic phenomenon of contemporary Western legal systems: the existence of two basic forces simultaneously attracting and repelling, affecting the law in its relations with the political world.

The Supreme Court in a Common Law Tradition: The Democratic Legitimacy of Judicial Review in Light of American Legal Realism

The democratic legitimacy of judicial review, especially the proper role of the Supreme Court in a democratic system, is a constantly debated issue in American constitutional law. While many theories or arguments focus their attention on the so-called countermajoritarian difficulty of judicial review, the viewpoint of American Legal Realism deserves special attention, since it conceives of democracy not merely as majority rule, but rather as government based on what the people really want, which then must be investigated not only in legislation, but in judicial process. Therefore, it strongly argues for the connection between judicial decisions and concrete social experience and in consequence focuses its attention particularly on the Supreme Court's investigation of empirical social science, which it believes will improve that court's legal reasoning on democratic grounds and in this way reinforce the democratic legitimacy of the court's decision. Thus conceived, Legal Realism regards common law as a specific way to realize democracy, and accordingly provides a framework for the proper role of the Supreme Court. In this view, Legal Realism plays an important role in the American constitutional history not only because it methodologically stands against Formalism, but because it provides a different model for explaining and supporting the democratic legitimacy of judicial review of the US Supreme Court within its common law background.

Introduction: From Legal Realism to Naturalized Jurisprudence

This is a draft of the introductory essay to my forthcoming collection of papers Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007). It gives an overview of my work on these topics over the last dozen years.

Ross and Olivecrona on Rights

Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a forthcoming Oxford University Press collection on the Scandinavian realists. The approach to jurisprudence of Scandinavian realists Alf Ross and Karl Olivecrona was simultaneously simple and radical: they wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's and Olivecrona's views on legal rights, while also summarizing the critiques of those views (e.g., by H.L.A. Hart and Joseph Raz).

Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution

This article offers a way of more fully understanding the nature of the United States constitution. It advances a perspective of constitutional realism, drawing on the American legal realist tradition, that emphasizes the importance of identifying the reality of how public power is exercised. The resulting conception of a complete constitution extends to the structures, processes, principles, rules, conventions and even culture that constitute the generic ways in which public power is exercised. The article undertakes a comparative analysis of the reality of a paradigmatic real-world unwritten constitution - that of New Zealand. It then suggests how such an analysis can be undertaken in the United States. It calls for greater attention to be paid to identifying and analyzing the important elements of the complete U.S. constitution that do not exist in the text so-labelled, including those elements that may exist in beliefs and behaviour. Changes to these constitutional elements deserve levels of scrutiny and national dialogue that should be just as intense and considered as changes to the text of the Constitution. The current incomplete American conception of the U.S. Constitution means that may not occur.

Jhering's Philosophy of Authority

This article offers a critical reassessment of the jurisprudence of Rudolf von Jhering. During the 20th century, Anglo-American legal philosophers who drew inspiration from Jhering's work usually lauded him either as a German forerunner to American legal realism or as an early proponent of a jurisprudence of interests. These representations of his work do not do justice to Jhering's jurisprudential project. This study demonstrates that he sought to explain how legal systems originate and how they maintain authority. It is shown that his explanation of legal authority depends not only upon familiar jurisprudential notions such as reciprocity and positional duty, but also upon the concept of Rechtsgefuhl—namely, the idea that authority is conditioned by citizens’ feelings of what is right or just. Jhering, it is demonstrated, believed that the authority of a legal system depends very much on its ability to negotiate and accommodate struggles based upon feelings of right—struggles between citizens, between citizens and State, and between States. It is also argued that the manner in which Jhering relies on the idea of Rechtsgefuhl undermines the received wisdom that he was an interest theorist.

Rights, Performatives, and Promises in Karl Olivecrona's Legal Theory

. Karl Olivecrona (1971) maintains that “right” is a “hollow word,” and so also for some other legal terms. “Right,” he says, “has no conceptual background.” He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona's arguments will be evaluated here. His position is influenced by Hagerstrom's theory of legal language, but he argues that Hagerstrom fails to account for how such terms as “right,”“duty,” etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona's book The Problem of the Monetary Unit (1957). Olivecrona is left with the problem of how such “hollow” terms function. His explanation is largely psychological. Going beyond J. L. Austin's notion of performatory language, he introduces the idea of performatory imperatives. I propose to submit Olivecrona's approach to a critical examination. It is suggested that had he started from everyday, nonlegal promises and commitments he might well have ended up with a different theory of legal language.

Against Metaphysics in Law: The Historical Background of American and Scandinavian Legal Realism Compared

Journal Article Against Metaphysics in Law: The Historical Background of American and Scandinavian Legal Realism Compared Get access Heikki Pihlajamäki Heikki Pihlajamäki 1Heikki PihlajamÄki is Lecturer in legal history at the University of Helsinki Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 52, Issue 2, Spring 2004, Pages 469–487, https://doi.org/10.2307/4144458 Published: 01 April 2004

Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter

In Towards a Realistic Jurisprudence, Alf Ross locates his theoretical position as a via media between the ‘pure theory of law’ of his teacher, Hans Kelsen, and the American legal realism he identified with Jerome Frank. When Ross and Kelsen came, however, to publish their respective studies of the UN Charter in 1950 — Ross' Constitution of the United Nations and Kelsen's massive The Law of the United Nations — their perspectives converge. This article places their analysis of the UN Charter in the context of their theoretical writings, but despite Kelsen's pure theory of law and Ross' Scandinavian realism, the two share a sense of law's dependence upon sanction and an understanding of the political underpinning of law's creation. And both held a strong commitment to international law doctrine, so that when they came to criticize the Charter, whether for its logical inconsistencies or the increased role of the political, they depict the Charter as ultimately representing a legal system that takes up the space of traditional international law. In their two works, Kelsen and Ross both register a tragic concern about that disappearing act of traditional international law doctrine.

Judge Shigeru Oda: A Tribute to an International Treasure

According to classical legal positivism, the prerequisite to being selected as a judge on the International Court of Justice is legal expertise and high moral character–the personality of the judge is therefore merely the subject of idle curiosity. American Legal Realists understood that one could not explain past decisions or predict future decisions merely by extrapolating rules; account needed to be taken of history, culture, politics, economics, and the personality of the judge. As a person, Judge Oda is famous for his self-control in personal comportment. As a judge he is a study in independence, having produced an unmatched number of dissents and separate opinions. His contribution to international law will continue to influence us.

American Legal Realism

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 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.

Synthetic Readings of Roscoe Pound's Jurisprudence

In this Article, Professor Lasser offers two distinct readings of Pound's comparative work. In the first, "generous" reading, he argues that the work of Roscoe Pound might well possess significant current potential for the discipline of American comparative law. As his famous exchange with Karl Llewellyn made abundantly clear, Pound was no friend of American legal realism. Given the prevalence of post-Realist perspectives in the American discipline of comparative law, Pound's work might offer an alternative methodology to that which has dominated American comparative law for at least the last thirty years. In particular, his work might offer a model of how to escape the typical American post-Realist prism which tends, almost as a matter of first principle, to define law in the Holmes/Llewellyn manner as "what the courts do in fact." Pound's comparative work, in other words, may offer a methodological alternative to American comparative law's tendency to approach law in a judge-centered manner, a tendency that obliterates the locus of the most basic differences between American and Continental European legal ideologies. In his second, "severe" reading, Professor Lasser argues that Pound's comparative analyses nonetheless fall into most of the pitfalls that Pound had himself identified and warned against. Faced with these two readings, Professor Lasser concludes that Pound's simultaneously promising and disappointing forms of comparativism should not be reconciled.*This is a draft submitted for advice and comments by my peers. It is not the final version of the article. Please send comments by e-mail to "lasserm@law.utah.edu".

Holmes, Nietzsche & Classical Realism

The point of departure is Richard Posner's striking suggestion that Holmes is American Nietzsche. What is it that the great American judge and the great German philosopher have in common? The Essay argues that the real thematic (and tempermental) affinity between Holmes and Nietzsche lies in the fact that both are proponents of a general, but neglected, perspective on questions of moral, political, and legal theory that I will call Realism. Importantly, the Classical of Holmes and Nietzsche places them in a long tradition of theories of morals, politics, and society that we find in writers like Thucydides, Machiavelli, Freud and (to some extent) Marx, among others. This tradition, however, has almost vanished from the modern academy. It is the most general aim of this paper to revive the doctrine of Classical as a serious--albeit debunking--position in normative theory. By using the label Realism I wish to reclaim for the term realism a meaning both older than and different from that current in academic debates, especially in philosophy, where it names certain doctrines in semantics and metaphysics. Classical Realism, by contrast, is a very different kind of view; indeed, it entails no particular semantic and metaphysical doctrines at all. Classical denotes a certain hard-headed, unromantic, uncompromising attitude towards the world, which manifests itself in a brutal honesty and candor in the assessment of human motives and the portrayal of human affairs. The Essay explores this doctrine in some detail in a variety of thinkers, including Holmes, Posner, Nietzsche, Marx, and the American Legal Realists. The Appendix to the Essay offers a critical discussion of Posner's and David Luban's treatment of the Holmes-Nietzsche relation.

Realism, Hard Positivism, and Conceptual Analysis

The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) “Positivists” or merely (tacit) “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism.

John Henry Schlegel, American Legal Realism and Empirical Social Science, Chapel Hill: The University of North Carolina Press, 1995. Pp xii + 418. $55.00 (ISBN 0-8078-2179-9).

John Henry Schlegel, American Legal Realism and Empirical Social Science, Chapel Hill: The University of North Carolina Press, 1995. Pp xii + 418. $55.00 (ISBN 0-8078-2179-9).

The Growth of the Federal Government and American Legal Realism

The Growth of the Federal Government and American Legal Realism