Monday, June 27, 2022

Priel on the Myth of Legal Realist Skepticism

Dan Priel, Osgoode Hall Law School of York University, has posted The Myth of Legal Realist Skepticism:

Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their work burst the myth of legal objectivity by mercilessly exposing the political ideology of Lochner v. New York. More generally, their skepticism about legal rules exposed the inherent contradictions of liberal legalism.

Now for some inconvenient facts: Most legal realists believed legal rules existed and mattered for legal decisions, they believed the law is mostly determinate, and worked to make it more so. Most of them never mentioned Lochner in their writings; the few who did dismissed the idea that the majority was driven by laissez faire ideology. What did they stand for, then? I argue in this Article that one way of getting a sense of what the realists believed is by looking at who they considered their intellectual allies. This exercise yields some surprising results. Rather than seeing the writing of a legal treatise as inconsistent with legal realism, they praised Arthur Corbin’s treatise for its realism. Benjamin Cardozo was described as one of the most sophisticated “anti-realist” judges of the last century, and yet virtually all the legal realists admired him. The realists similarly admired the work of Wesley Hohfeld, not because it revealed law’s reactionary politics, but because, as Llewellyn put it, it “cuts very close to the atomic structure of the law on its conceptual side.” Almost all legal realists spoke in favor of the Restatements, and many were involved in them.

Does this mean the familiar narrative of the realists’ opposition to the ideas of Langdell and Beale is also mistaken? Not quite. The realists did object to their ideas, but—and here comes another surprise—theirs was not a modernist challenge to the “classical” ideas of their predecessors. Rather, legal realists like Llewellyn and Frank were traditionalists who sought to revive old ideas being lost due to the modernistic project spearheaded by Langdell’s Harvard.
--Dan Ernst