Legal Realism


I’ve written five pieces on legal realism.

Prediction Theories of Law and the Internal Point of View, San Diego Law Review (forthcoming)

This paper was for a symposium on Laurence Claus, Law's Evolution and Human Understanding (Oxford, 2013). In it I discuss the similarities between Claus's approach and the legal realists' prediction theory of law.

Felix Cohen on Legislation, 1 The Theory and Practice of Legislation 113-28 (2013)

This is a short invited piece. In it I focus on the consequences that my philosophical anarchist reading of Cohen has for his views about legislation. 

Leiter on the Legal Realists, 30 Law & Philosophy 381 (2011)

This piece is a review essay on Brian Leiter's book Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford U. Press 2007). It is the best thing I've written on the realists and the best description of how my reading differs from Leiter’s.

First of all, I emphasize that the realists – especially Jerome Frank, Felix Cohen, and Walter Wheeler Cook – believed that the existence of the law
(including the law of a reasonably just state like the United States) does not entail that a judge has a reason to adjudicate as the law commands. This does not mean, of course, that there are not excellent moral reasons for a judge to apply the law in most circumstances. But adjudication according to the law is always a moral decision that requires adequate moral justification. The realists were, in short, philosophical anarchists. (For a good discussion of contemporary philosophical anarchism, see William A. Edmundson, State of the Art: The Duty to Obey the Law, 10 Legal Theory 215-59 (2004).)

Second, I argue, contrary to Leiter, that many realists were committed to a prediction theory of law. Indeed they offered two “prediction” theories. According to the first, which is best described as a decision theory of law, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. In contrast, Leiter argues
that the realists were committed to a standard positivist theory of law, such as that offered by H.L.A. Hart.

Legal Realism as Theory of Law, 46 William and Mary Law Review 1915-2000 (2005)

This is my most cited article (although usually just for my statement that people have said "we are all legal realists now" so often that it has become a cliché to call it a "cliché"). It is also the one with the most downloads on SSRN. But I'm not that happy with it. It's not that I'm dissatisfied with the arguments I offer. Like the Leiter review above, I argue that the realists were philosophical anarchists and were committed to two prediction theories of law. The main problem is that there is far too much crammed into it. In addition to offering a reading of the legal realists, I take on current philosophers of law who attempt to explain the “normativity” of law in terms of its providing officials with reasons (although not necessarily moral reasons) for action, and I suggest that H.L.A. Hart might have been one of these philosophers of law. As a result, the article is massive and rambling.

This article also differs from the Leiter review in the way I frame my interpretation of the realists. Why, I ask, did they deny that there are legal rules? The reason, I argue, is that they thought of legal rules in the natural-law sense of entailing duties of obedience. And, being philosophical anarchists, they denied that legal rules, in this sense, can exist. (Another reason that they denied that legal rules in this sense can exist is because they were skeptical about the very idea of there being any non-instrumental reasons for action, even moral reasons for action.)
Now, it is true that the realists often suggest that legal rules are illusory and the philosophical anarchist reading helps explain why they did. But philosophical anarchism can be attributed to the realists independently of their occasional rejection of the very idea of legal rules. This is what I do in the Law & Philosophy piece.

In a lengthy footnote in Naturalizing Jurisprudence, Brian Leiter called this article "extraordinarily confused" (p. 118 n. 68), although in Legal Formalism and Legal Realism: What is the Issue?, 16 Legal Theory 111-33 (2010), he describes it as wrong, but "jurisprudentially interesting because it articulates precise and distinctive Realist theses about law and adjudication." I briefly respond to Leiter's comments in footnote 70 of Leiter on the Legal Realists.

Note, Legal Realism, Lex Fori, and the Choice-of-Law Revolution, 104 Yale Law Journal 967-94 (1995)

This is a student note (which was awarded the Israel H. Peres Prize by the faculty of Yale Law School for best note in Yale Law Journal in the academic year 1994-95). The germ of the philosophical anarchist reading of the realists, discussed above, is there. In it I offer a revisionary reading of the role that legal realism played in the choice-of-law revolution, in which the vested rights theory of Beale was replaced by interest analysis.


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