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Topic: Legal realism

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Legal formalism

Philosophy of law

Legal positivism

Critical legal studies

Law and economics

Natural law

Law

Ronald Dworkin

Jurisprudence

Virtue jurisprudence

Libertarian theories of law

Hans Kelsen

Grundnorm

Rule of law

University of Pennsylvania Law School

	Legal realism - Wikipedia, the free encyclopedia
		Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism).
		The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.
		In addition, legal realism eventually lead to the recognition of political science and studies of judicial behavior therein as a specialized discipline within the social sciences.
	en.wikipedia.org /wiki/Legal_realism (498 words)

	Jurisprudence - Wex
		In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute.
		The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought.
		Critical legal studies, feminist jurisprudence, law and economics, utilitarianism, and legal pragmatism are but a few of them.
	www.law.cornell.edu /topics/jurisprudence.html (500 words)

	The Leiter Reports: Editorials, News, Updates: What is "legal realism"? (Site not responding. Last check: 2007-11-06)
		Those who are realists about law, and more particularly, courts, think that the kinds of "legal reasons"--appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case--that judges offer in their opinions largely obscure the actual grounds of decision.
		Legal reasons don't really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes.
		It should hardly be surprising that legal realism is the correct descriptive account of appellate decision-making, if only for the simple reason that the cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable.
	webapp.utexas.edu /blogs/archives/bleiter/000263.html (762 words)

	Legal Realism and the Social Contract by James Boyle
		My argument is that legal and social theorists have been slow to see the parallels between the problems of contractualism and the problems of contract law, between the contract for chickens and the social contract, between the problems of Willistonian will theory and the problems of original intent.
		Thus he agrees with the realists' insistence on functional analysis of legal rules, agrees with their critique of conceptualism and their claim that judges are significantly unconstrained by legal doctrine tout seul but argues that general acceptance of these ideas will actually lead to greater certainty and predictability in the legal system.
		Indeed, both classical legal contract and traditional social contract are used to dismantle the entrenched institutional framework that binds and subordinates the individual.
	www.law.duke.edu /boylesite/fuller.htm (12050 words)

	Philosophy of Law [Internet Encyclopedia of Philosophy]
		A legal practice can be understood from the "internal" point of view of the person who accepts that practice as providing legitimate guides to conduct, as well as from the "external" point of view of the observer who wishes to understand the practice but does not accept it as being authoritative or legitimate.
		Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society's collective moral judgments even when those behaviors do not result in physical or psychological harm to others.
		Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls self-regarding actions when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves.
	www.utm.edu /research/iep/l/law-phil.htm (6898 words)

	ABF Current Areas of Research Elizabeth Mertz
		The ABF and the Institute for Legal Studies at Wisconsin have long been leaders in the social science study of law; in the New Legal Realism Project, they are combining forces with interested scholars at other institutions in an effort to devise new ways of translating across the disciplinary boundaries of law and social science.
		An entirely student-run and funded symposium on New Legal Realism was held at the University of Wisconsin in the spring, focusing on issues of law, land, and poverty.
		Ongoing presentations and seminars related to the New Legal Realism have been held this year at the ABF, the University of Wisconsin, and the Law and Society Association Meetings, and are scheduled for plenary and other sessions at the upcoming American Association of Law Schools Meetings.
	www.abf-sociolegal.org /resmertz2.html (522 words)

	[No title]
		Much critical legal scholarship consists of a series of complicated and erudite explanations of the idea that law cannot be interpreted neutrally and thus that the law/politics distinction and the legitimating story on which the liberal state depends must inevitably collapse.
		Legal realism provided critical legal scholars with many of theirarguments and the CLS project was made easier because the legal elite had already been 'infected' with realism.
		Legal doctrine is presented as though it is both infinitely manipulable and firmly constrained by the reified metaphors of common sense and legal consciousness.
	www.law.duke.edu /boylesite/politics.htm (18227 words)

	Legal reasoning paper
		Classical Legal Thought was also considered "formalistic" in that law was regarded as a set of neutral, abstract background principles facilitating the free choice of individuals in their private, market sphere.
		The break from natural law was enhanced by a growing legal positivism which wanted to separate the law that "existed" from the law that "ought to be" in order to purge legal science of all personal and subjective elements.
		The difference between the pre-World War I, Progressive Legal Thought and the newly developed Legal Realism was that the Progressives tended to be court-centered and the Legal Realists concentrated on arguing for statutory or administrative change.
	www.ags.uci.edu /~dkieso/legal.htm (2936 words)

	I
		Attached is The Epilogue from Laura Kalman’s Legal Realism at Yale, 1927-1960.
		Whitney Griswold had been as liberal as his distant predecessor James Rowland Angell, legal realism might have had a greater impact on the law school’s curriculum by 1960.
		Legal realism yielded to process jurisprudence, which became the most significant jurisprudential development of the postwar era.
	www.law.harvard.edu /academics/registrar/exams_01-02/html/horwitz.html (1212 words)

	Book Review of Schlegel, "American Legal Realism"-- Law and History Review
		In his view, Realism should not be approached in terms of familiar jurisprudential debates about legal or factual determinacy; nor should it be viewed as embodying a progressive attack on the formalism of classical legal thought.
		Indeed, in Schlegel's account of American Legal Realism, Karl Llewellyn turns out to be much less central to the story than his second wife, Emma Corstvet, a social scientist who worked with Underhill Moore at Yale during the early thirties.
		Legal Realism has always been a kind of intellectual Rorschach test for American lawyers, symbolizing different things to different people.
	www.yale.edu /lawweb/jbalkin/opeds/bookreviewofamericanlegalrealism.htm (1023 words)

	TOWARD A THEORY OF LEGAL NATURALISM*
		The realists focused on the legal process, arguing that it was naive and illegitimate to deal with "principles" of law in a sociological vacuum.
		On this view, these requisite legal duties are what natural rights are and their very formulation depends on their objective necessity as a condition of rational human existence.
		Legal Naturalism is an extension of the natural rights theorists' concern with the proper substance of law.
	www.randybarnett.com /towardatheory.html (6423 words)

	Legal realism and langdell and holmes and protestantism and science
		Legal realism and langdell and holmes and protestantism and science
		We cannot place and understand legal realism without realizing that it is fundamentally a movement in reaction to Langdell and a spirit of thinking that characterized the last decades of the 19th century.
		Thus, the goal of legal education was not simply to learn the trade (by apprenticeship) or even to master the professor's lectures; the goal was to tease out principles from cases and then use these principles to fill out the full panoply of legal doctrine.
	www.drbilllong.com /Jurisprudence/RealismI.html (816 words)

	Naturalism in Legal Philosophy (Stanford Encyclopedia of Philosophy)
		The legal rules of evidence, in turn, are a prime case of the latter: for these rules structure the epistemic process by which jurors arrive at beliefs about disputed matters of fact at trials.
		One peculiar feature of the moral realism of Moore (1992b) is that it is conjoined with a deontological moral theory, yet within a purportedly naturalistic moral realist framework.) The crucial claim, plainly, is that moral facts are to be identified with (or treated as supervenient upon) certain kinds of natural facts.
		“Legal Realism and Legal Positivism Reconsidered,” Ethics 111: 278-301.
	plato.stanford.edu /entries/lawphil-naturalism (8168 words)

	Empirical Legal Studies: My take on new legal realism
		As Bill noted in his Introduction to this blog forum, much of the old legal realism was aimed at freeing appellate judges from the confines of formal approaches so that they could carry out good policies or their "situation sense" as they decided cases.
		A new legal realism is not as focused on appellate judging as the old.
		Legal scholarship that proceeds without awareness of the existing empirical charts of the law in action risks a similar fate.
	www.elsblog.org /the_empirical_legal_studi/2006/06/my_take_on_new_.html (3055 words)

	Capitol Hill Coffee House: Justice Holmes and Legal Realism by Thomas Brewton
		Other advocates of legal realism forthrightly declared that the law is whatever a judge rules.
		One effect of legal realism was to introduce socialism and Auguste Comte’s sociology as an acceptable basis for judicial opinion.
		Another implication of legal realism was Holmes’s acceptance of raw political power as the source of the law.
	capitolhillcoffeehouse.com /more.php?id=1077_0_1_0_M (1140 words)

	Catholic Legal Theory
		Scaperlanda: Catholic legal theory is an ongoing project of Catholic law professors, legal philosophers and others to participate in drawing on the Catholic intellectual tradition to build a culture that values the dignity of the human person, sees the community as indispensable for human flourishing, and seeks authentic freedom for the person within the community.
		Catholic legal theory focuses, as you might imagine, on the ways that law and legal systems can aid or impede the building of a culture of life.
		Catholic legal theory offers a powerful corrective lens through which to see the fatal defects in the secularist liberal project, while offering a reasonable alternative for the development of a secular legal system in a pluralistic society.
	www.ewtn.com /library/Academic/ZLEGALTH.HTM (1690 words)

	Legal Realism (Site not responding. Last check: 2007-11-06)
		The law - as the legal realists said - was not abstract, but decided by men with prejudices and biases like any other group of humans, then rationalized with cases and precedents (but there are always precedents on either side of a big case).
		This leaves the consideration of important legal issues, even issues as big as impeaching a president, as highly personal, and therefore political matters.
		Legal realism just gives it a name as it applies to law.
	ontology.buffalo.edu /smith/clinton/legalrealism.htm (654 words)

	Balkinization
		It should be enough to realize that the often brilliant analysts responding to the great crisis in their personal and professional lives may have something to teach us today about how political institutions operate under stress (and where demagogic and opportunistic politicians realize that there are potential gains to maximizing public fears of the Other).
		I suspect that Bush realizes this and is fighting the anti-terror bill in an attempt to avoid this process and hide the fact that he signed us into a bad system for politically expediency.
		This is not a legal distinction, but rather a policy decision based on the history of how combat soldiers often treat enemy soldiers after losing their own in a battle.
	balkin.blogspot.com /2006/09/legal-realism-101-and-mccain.html (6000 words)

	About Us (Site not responding. Last check: 2007-11-06)
		George weighs the costs and benefits of every legal decision in a manner which does not compromise the interests of his clients.
		Clients are afforded respect and consideration throughout all phases of legal representation.
		Legal analyses on any specific matter will vary and are also complicated by the discretion which courts possess.
	www.legalpaladin.com /aboutus.htm (213 words)

	Contents of IV. LEGAL REALISM OR LEGAL FICTION: THE NATURE OF LAW AND THE SUPREME COURT’S CHOICE IN ZADVYDAS (Site not responding. Last check: 2007-11-06)
		The entry fiction was created in order to allow aliens whose legal status does not permit entry into the United States to be admitted in order to avoid literally holding them at the border.
		Their legal status remains unchanged, however, retaining the notion that they are standing at our gates, awaiting entry.
		What is important for this analysis is not the legal status of the alien, as the Zadvydas decision suggests by placing emphasis on the effect of the final order of deportation, but rather the fact that the alien has gained entry into the United States and is now physically present here.
	www.law.upenn.edu /conlaw/issues/vol3/num1/costello/node6_ct.html (1370 words)

	Mertz main
		While the pre-tenure years of legal academics have received more attention, the factors influencing the experience of senior legal academics are not well studied.
		The New Legal Realism Project offers a tripartite approach to addressing this problem, an approach that includes sophisticated consideration of legal issues, empirical research and policy—much as did the "old" legal realists—but with the benefit of several generations of thinking in all these areas.
		Panelists brought together strands of scholarship from an impressive array of fields, including legal history and theory; the "new governance" paradigm in legal studies; studies of poverty, law, and land use; scholarship addressing transnational laws and processes; empirical research on discrimination; and novel proposals for integrating social science into law teaching.
	www.abf-sociolegal.org /Research_Fellows/Mertz/Mertz_main.htm (764 words)

	Critical legal theory - Wex
		Critical legal studies (CLS) (http://www.wvu.edu/%7Elawfac/jelkins/critproj/cls.html) is a theory that challenges and overturns accepted norms and standards in legal theory and practice.
		CLS has borrowed heavily from Legal Realism the school of legal thought that flourished in the 1920s and 1930s.
		Like CLS scholars, legal realists rebelled against accepted legal theories of the day and urged more attention to the social context of the law.
	www.law.cornell.edu /topics/critical_theory.html (379 words)

	Discriminations: Are Liberals Legal Realists Or Formalists?
		Contemporary left-liberalism certainly doesn't owe very much to the legal realism that was one of the major intellectual movements on the center-left in the first half of the twentieth century, and that apparently captured the Supreme Court for a while.
		Richard Posner and the crits are the heirs-apparent of legal realism, while the liberal legalist attempt to rationalize the Warren Court (e.g.
		In short, I suspect Levy may be underestimating the sway of legal realism in liberal thought today.
	www.discriminations.us /2004/05/are_liberals_legal_realists_or.html (520 words)

	The Leiter Reports: Editorials, News, Updates: More on Legal Realism (Site not responding. Last check: 2007-11-06)
		The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former."
		For any plausible realist thesis about the indeterminacy of legal reasoning is the thesis that legal reasons underdetermine the legal decision in many appellate cases, i.e., the legal reasons circumscribe the range of legally defensible outcomes, but without requiring any one of them over all the others.
		Which is to say, in the Clerk's terms, that the doctrine, according to realism, always "constrains" the decision.
	webapp.utexas.edu /blogs/archives/bleiter/000479.html (666 words)

	Jurisprudence - Links to Legal Resources: Jurisprudence (Site not responding. Last check: 2007-11-06)
		Legal History and Philosophy - Quotes from important persons, texts and documents, in the area of legal history and philosophy.
		Legal Information Institute - About...Jurisprudence - An overview of "jurisprudence," the philosophy of law, with additional resources on "critical legal studies" and "feminist jurisprudence."
		The law of logic - Summary of the logical consequences of an agreement to communicate, and its impact on the law.
	mishpat.net /law/Jurisprudence (222 words)

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