Legal Realism
| Author | Jeffrey Lehman, Shirelle Phelps |
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The school of legal philosophy that challenges the orthodox view of U.S. JURISPRUDENCE under which law is characterized as an autonomous system of rules and principles that courts can logically apply in an objective fashion to reach a determinate and apolitical judicial decision.
Legal realists maintain that common-law adjudication is an inherently subjective system that produces inconsistent and sometimes incoherent results that are largely based on the political, social, and moral predilections of state and federal judges.
The U.S. legal realism movement began in 1881 when OLIVER WENDELL HOLMES JR. published The Common Law, an attack on the orthodox view of law. "The life of the law has not been logic," Holmes wrote, "it has been experience." Legal realism flourished during the 1920s and 1930s when ROSCOE POUND, a professor from Harvard Law School, and KARL LLEWELLYN, a professor from Yale Law School, published a series of articles debating the nuances of the movement. Although the movement declined after WORLD WAR II, it continues to influence how judges, lawyers, and laypersons think about the law.
Legal realism is not a unified collection of thought. Many realists, like Pound and Llewellyn, were sharply critical of each other and presented irreconcilable theories. Yet, five strands of thought predominate in the movement. The strands focus on power and economics in society, the persuasion and characteristics of individual judges, society's welfare, a practical approach to a durable result, and a synthesis of legal philosophies.
The first strand is marked by the nihilistic view that law represents the will of society's
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Oliver Wendell Holmes Jr. started the legal realism movement when he published his book The Common Law in 1881.
most powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he tells Socrates that in every government "laws are made by the ruling party in its own interest," and "the ruling element is always the strongest." When courts speak in terms of what is right and just, Thrasymachus said, they are speaking "in the interest of those established in power." Justice Holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the natural outcome of dominant public opinion (LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).
Realists argued that law frequently equates the dominant power in society with pervasive economic interests. During the incipience of the U.S. legal realism movement in the nineteenth century, the United States was transformed from a static agrarian economy into a dynamic industrial market. Realists asserted that U.S. COMMON LAW facilitated this transformation in a number of ways. Horwitz reported in The Transformation of American Law that when interpreting an insurance contract, one judge remarked in 1802 that courts must not adopt an interpretation that will "embarrass commerce." Instead, the judge said, courts are at liberty to "adopt such a construction as shall most subserve the solid interests of this growing country."
To help subsidize the growth of a competitive economy in the nineteenth century, realists have argued, U.S. judges commonly frowned on claims brought by litigants seeking monopolistic power. For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 A.D. 270 (1805), a downstream landowner asked the New York Supreme Court to grant him the exclusive right to use river water for commercial activity despite any injuries that might result to upstream owners. The court refused to grant such a right because if it did "the public would be deprived of the benefit which always attends competition and rivalry." In a subsequent case, the New York Supreme Court held that a landowner's right to enjoy his property could be "modified by the exigencies of the social state" (Losee v. Buchanan, 51 N.Y. 476 [1873]). The court added, "We must have factories, machinery, dams, canals and railroads."
At the same time the common law was facilitating economic expansion, realists claimed that it was also helping to increase the number of exploited U.S. citizens. Realists were skeptical of the traditional description of the U.S. economy as a free market...
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