A few of us debated the merits of Legal Realism, then in vogue at Yale Law School, which seemed to me to be simpleminded reductionism. But the mode of analysis of many of the Harvard Law faculty was not vastly superior, though it was attractive because it did not seek to shock. It assumed that the task of judges, within the limits of precedent, was to balance interests. Decisions were admired that appeared appropriately to have balanced interests of contending parties and the larger groups they might be thought to represent. For example, decisions, even by the most strained reasoning, that found large corporations liable in suits for negligence and ignored the negligence of the presumably impecunious plaintiff were generally justified because they spread the risk of accidents, even though they did so in haphazard, nonactuarial ways that were of enormous benefit to the litigating bar and sometimes produced a windfall for the plaintiff. Law professors made no accompanying investigation into the real interests; assumptions were made of a generally liberal sort as to what was in whose interest, and the question was happily left at that.To me, at least, the account suggests how thoroughly American law professors incorporated the legal sociology of Eugen Ehrlich, championed by Roscoe Pound, into their thinking, albeit in a bland and not very rigorous way. I'll confess to feeling vulnerable to a similar critique in how I deploy legal theory in my own Property class. If so, o you future Reisman, please be kind!
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