I’ve written six pieces on legal realism.
Logic and Legal Realism, in Dieter Krimphove & Florian Simon (eds.), Research Handbook in Law and Logic 81-94 (Duncker & Humblot 2017)
This paper argues that the realists' apparent criticism of the use of logic in legal reasoning actually concerned a number of other errors.
Prediction Theories of Law and the Internal Point of View, 51 San Diego Law Review 921-38 (2014)
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
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
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
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.
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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