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| | 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). | | | Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. | | | The chief inspiration for Scandinavian Legal Realism many consider to be the works of Axel Hagerstrom. |
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http://en.wikipedia.org/wiki/Legal_realism
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| | Jurisprudence - Wex |
| | Critical legal studies (http://www.law.cornell.edu/topics/critical_theory.html), feminist jurisprudence (http://www.law.cornell.edu/topics/feminist_jurisprudence.html), law and economics, utilitarianism, and legal pragmatism are but a few of them. | | | 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. |
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http://www.law.cornell.edu/topics/jurisprudence.html
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| | Critical legal studies - Wikipedia, the free encyclopedia |
| | A court is a court, a parliament is a parliament - the two types of institutions are never the same in practice, and the CLS scholars have never denied that. | | | The claim that legal materials are inherently contradictory, i.e. | | | The claim that far more often than is usually suspected the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, etc.) for greater justice. |
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http://en.wikipedia.org/wiki/Critical_legal_studies
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| | The Leiter Reports: Editorials, News, Updates: What is "legal realism"? |
| | 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. | | | 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. | | | legal realist, appreciation of what appellate courts actually do, suggests that they ought to be using the filibuster a lot more. |
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http://webapp.utexas.edu/blogs/archives/bleiter/000263.html
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| | Eric Engle, Critical Legal Studies in America |
| | Legal realism also proposed that if in fact the judicial decision is only a subjective expression of a judges preferences and not an objective expression of "reality". | | | Returning to the question of legal realism, the legal realists percieved the positivistic nature of legal decision in fact. | | | While legal realism is correctly seen as a "left" legal theory it in fact can be linked to the thought of the arch conservative justice Oliver Holmes. |
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http://www.gradnet.de/papers/pomo2.archives/pomo2.papers/engle00.htm
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| | 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. | | | Indeed, both classical legal contract and traditional social contract are used to dismantle the entrenched institutional framework that binds and subordinates the individual. | | | After having disengaged the individual from the fetters of custom, both the social contract and the legal contract are used as vehicles to reconstruct the sociopolitical universe from the standpoint of the autonomous will of free individuals. |
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http://www.law.duke.edu/boylesite/fuller.htm
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| | Law & Society Weblog » A Defense of Formalism from a Systems Theory Point of View |
| | Legal realism is incorrect to the extent that it confuses different modes of operation, for example, legal communication with preferences, interests, or states of mind. | | | Often, the goal of legal realism is explicitly stated as uncovering the causal relationship between inputs (facts and law) and output (decision). | | | The legal system is autonomous in its decision as to what (in its environment, seen from from the vantage point of the legal system) is legally relevant, that is, the decision of legal relevancy can only be made on the basis of (prior) legal communications. |
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http://www.hfkdocs.com/blog/archives/47
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| | JURI 4325 - Perspectives on the Legal Process |
| | The German scholar, Hermann Kantorowicz (a leading figure in the German free law movement, which emphasized the creative choice of judges) criticized legal realism for claiming that (a) law is a body of facts not rules, and (b) legal science is an empirical not a rational science. | | | William Singer writes that the central question that legal realists left unresolved is: "How can we engage in normative legal argument without reverting to the formalism of the past or reducing all claims to the raw demands of political interest groups?" "Legal Realism Now," 76 Cal. L. | | | Morton Horowitz has observed about legal realism: "Legal realism was neither a coherent intellectual movement nor a consistent or systematic jurisprudence. |
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http://www.lawsch.uga.edu/~bodansky/courses/Perspectives/Class04-Realism.html
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| | John & Belle Have A Blog: Keeping It Real, the Strom Thurmond Way |
| | Robert Gordon's fabulous essay on "Unfreezing Legal Reality: Critical Legal Approaches to Law" is written for lawyers and judges, and Boyle's essay for law students on "First-Year Mystification and Legal Argument" is equally "real-world" and lawyerly. | | | I am surprised you say that legal realism goes much deeper than "all law is politics"; and that it entails the complete deconstruction of the distinctions you name. | | | Holmes, the grandaddy of legal realism, thought that the descriptive part of legal realism was its only normative stance. |
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http://examinedlife.typepad.com/johnbelle/2003/11/keeping_it_real.html
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| | Philosophy of Law [Internet Encyclopedia of Philosophy] |
| | Accordingly, an unjust law can be legally valid, but cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. | | | As an historical matter, legal realism arose in response to legal formalism, a particular model of legal reasoning that assimilates legal reasoning to syllogistic reasoning. | | | According to the formalist model, the legal outcome (i.e., the holding) logically follows from the legal rule (major premise) and a statement of the relevant facts (minor premise). |
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http://www.utm.edu/research/iep/l/law-phil.htm
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| | TOWARD A THEORY OF LEGAL NATURALISM* |
| | The legal process is the system by which positive law is determined, applied and enforced. | | | The realists focused on the legal process, arguing that it was naive and illegitimate to deal with "principles" of law in a sociological vacuum. | | | The failure of the positivists to distinguish between the power of the State and the law is their failure to see that the law-maker is constrained by his own rules imposed from below by the justified expectations of the citizenry. |
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http://www.randybarnett.com/towardatheory.html
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| | [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. | | | Other critical legal theorists have turned away from a focus on the failure of neutrality in the interpretation of law and toward a focus on the politically 'tilted' way in which legal doctrine re-presents social reality. | | | Second, critical legal theorists have rejected the legal realists' attempt to reconstitute the neutrality of the legal system around policy argument, balancing of interests, or the supposedly objective expertise of policy scientists trained as lawyers. |
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http://www.law.duke.edu/boylesite/politics.htm
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| | 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. | | | Although Clark in particular learned a considerable amount about empirical social science and about the legal system through his studies, he eventually turned to a more lawyerly project of drafting the new Federal Rules of Civil Procedure. | | | Hence for Cook the scientific study of law could be about the organization and analysis of doctrinal categories, but not the empirical study of the legal system. |
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http://www.yale.edu/lawweb/jbalkin/opeds/bookreviewofamericanlegalrealism.htm
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| | Catholic Legal Theory |
| | Since, as St. Paul says in Romans 2:15, every person has the law written on their heart, a Catholic legal theorist can rely on the use of natural law to reason together with non-Christians on how society's laws and legal systems ought to be structured for the good of the person. | | | For almost 100 years, secular schools of legal philosophy — especially legal realism and legal positivism — have been dominant within the legal academy and the judiciary. | | | The Catholic legal theorist must grapple with the question of how the law and legal systems can best serve the development and flourishing of this creature — the human person — who is created in God's image and revealed to us in the person of Christ. |
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http://www.ewtn.com/library/Academic/ZLEGALTH.HTM
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| | Contents of IV. LEGAL REALISM OR LEGAL FICTION: THE NATURE OF LAW AND THE SUPREME COURT’S CHOICE IN ZADVYDAS |
| | The Hoang Manh Nguyen court reveals the vulnerability of this legal maneuvering. | | | Their legal status remains unchanged, however, retaining the notion that they are standing at our gates, awaiting entry. | | | 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. |
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http://www.law.upenn.edu/conlaw/issues/vol3/num1/costello/node6_ct.html
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| | CLS Genesis & Tenets |
| | Their experience with the legal system suggested to them that the apparent neutrality of legal rules actually operates to favor privileged groups, and that any purported advances in legal rules are always qualified in a way that prevents real social change. | | | The legal realists believed that law cannot be explained by reference to statutes and casebooks. | | | The movement drew its founders from several sources: legal academics who had supported civil rights and anti-Vietnam activism, scholars interested in a more radical critique of the social order, and public interest lawyers who worked in legal service centers and had poverty law practices. |
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http://gsulaw.gsu.edu/pwiseman/syllabi/Jurisprudence/clsgenesis.htm
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| | Mertz main |
| | 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. | | | The intersection of language and law, from anthropological and legal perspectives. | | | 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. |
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http://www.abf-sociolegal.org/Research_Fellows/Mertz/Mertz_main.htm
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| | The Leiter Reports: Editorials, News, Updates: More on Legal Realism |
| | 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. | | | "It's not that legal realism has no merit, it's that its merits are always overstated. | | | However, what many people, including lawyers, do fail to appreciate are the convolutions and subtleties of legal doctrines, constitutional and otherwise. |
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http://webapp.utexas.edu/blogs/archives/bleiter/000479.html
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| | I |
| | For all of its innovations, legal realism proved to be essentially a conservative movement. | | | Yet the very nature of legal realism guaranteed that its incursions would not have been much greater had it been given full sway, for realism left the appellate opinion at the center of legal education. | | | It no longer lay at the core of legal practice if indeed it ever had – by 1960, most lawyers were avoiding the expense of appellate litigation through out-of-court settlement. |
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http://www.law.harvard.edu/academics/registrar/exams_01-02/html/horwitz.html
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| | Georgetown Law - Curriculum (Online Curriculum Guide) |
| | The Legal Justice Seminar provides an overview of major nineteenth and twentieth century American legal theories, highlighting scholarly expositions and judicial application of formalism, realism, legal process theory, law and economics, critical legal studies, critical race theory, feminist legal theory, and law and literature. | | | These three competing accounts of the nature of legal authority, obligation, and reasoning once framed most discussions of jurisprudence in the United States. | | | Although the precise content of the basic jurisprudence course will vary from instructor to instructor and from year to year, the course typically features a survey of natural law, legal positivism, and realism. |
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http://www.law.georgetown.edu/curriculum/tab_clusters.cfm?Status=Cluster&Detail=18
(664 words)
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| | [No title] |
| | The New Legal Realism Project was started through a collaboration between the American Bar Foundation and the University of Wisconsin Law School’s Institute for Legal Studies (see www.newlegalrealism.org for a very preliminary description). | | | Like the original legal realism, NLR works at the intersection of law, social science, and policy — but this newer effort takes account of the advances in understanding we have achieved over the intervening decades. | | | The New Legal Realism Project (NLR) was formed to encourage that more systematic discussion. |
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http://www.law.emory.edu/flt/NLR-FLT-call-1.doc
(612 words)
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| | Jurisprudence - Links to Legal Resources: Jurisprudence |
| | Philosophy of Law - Philosophers of law are concerned with providing a general philosophical analysis of law and legal institutions. | | | The Nature of Law - Survey of theories on the conditions of legal validity including natural law theories and legal positivism, from the Stanford Encyclopedia of Philosophy. | | | Issues in legal philosophy range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relation between law and morality and the justification for various legal institutions - From the Internet Encyclopedia of Philosophy |
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http://mishpat.net/law/Jurisprudence
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| | Concurring Opinions: Legal Realism and the Lefty Blogosphere |
| | Alito's views on legal issues." There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate's advise and consent role. | | | Concurring Opinions: Legal Realism and the Lefty Blogosphere | | | Listed below are links to weblogs that reference Legal Realism and the Lefty Blogosphere: |
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http://www.concurringopinions.com/archives/2005/11/legal_realism_a_1.html
(1033 words)
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| | Revisiting Legal Realism: The Law, Economics, and Organization Perspective |
| | Although American Legal Realism fell on hard times, the objections of the Realists with legal formalism had substance earlier in the century and have substance today. | | | Oliver E. Williamson, "Revisiting Legal Realism: The Law, Economics, and Organization Perspective" (May 3, 1995). | | | Revisiting Legal Realism: The Law, Economics, and Organization Perspective |
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http://repositories.cdlib.org/blewp/art159
(180 words)
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| | Oliver Wendell Holmes Jr. and Path of the law and questions and dewey and legal realism |
| | and Path of the law and questions and dewey and legal realism | | | is probably the most famous American legal thinker and jurist. | | | The purpose of this page is to describe the intellectual influences that gave birth to the legal realist movement and to present some thoughts/questions to help us understand "The Path of the Law." A few preliminary remarks are necessary. |
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http://www.willamette.edu/~blong/Jurisprudence/RealismII.html
(789 words)
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| | inside.gif |
| | Among the topics that will be discussed will be the Enlightenment and codification, Romanticism and the Historical School of Law, mid 19th century evolutionary theories of law, late 19th century legal science, fin de siècle anti-formalism, modernism and legal realism and the postwar globalization of legal thought. | | | James E. Herget and Stephen Wallace, “The German Free Law Movement as the Source of American Legal Realism” 73 Virginia Law Review (1987) 399-419. | | | David Sugarman, “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition,” in W. Twinning ed., Legal Theory and Common Law (Oxford: Blackwell, 1986), 26-36, 44-54 |
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http://www.cardozo.yu.edu/jlis/syl_likhov.html
(529 words)
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| | Yale Law Journal: Breaking the rules? Wittgenstein and legal realism. (Ludwig Wittgenstein)@ HighBeam Research |
| | A theory on the validity of legal judgments is limited by the law's characteristics, decisionmakers reliance on existing rules and the real problem of justifying the authority inherent in judicial decisions. | | | Legal realists interpret Ludwig Wittgenstein's works as proving language itself is indeterminate, and this indeterminacy attaches onto all rules providing judicial authority. | | | The authority to render legal decisions may evolve from a majority social group's demands or from a judicial culture separated from the society judges affect. |
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http://www.highbeam.com/library/doc0.asp?DOCID=1G1:20623068&refid=holomed_1
(204 words)
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| | Legal Realism |
| | 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. | | | 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). |
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http://ontology.buffalo.edu/smith/clinton/legalrealism.htm
(654 words)
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| | New Legal Realism |
| | We are working with a tripartite approach that includes sophisticated consideration of empirical research, legal issues, and policy - much as did the "old" legal realists, but with the benefit of several generations of new thinking in all of these areas. | | | At the same time, one must also study legal elites and institutions from the "top" in order to gain a thorough understanding of legal processes. | | | The New Legal Realism Project, jointly sponsored by the American Bar Foundation and the Institute for Legal Studies at the University of Wisconsin Law School, seeks to develop an interdisciplinary paradigm for empirical research on law. |
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http://www.newlegalrealism.org
(497 words)
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| | Critical legal theory - Wex |
| | 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. | | | 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. |
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http://www.law.cornell.edu/topics/critical_theory.html
(379 words)
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| | University of Wisconsin Law School - About ILS |
| | Jointly sponsored by the Institute for Legal Studies and the American Bar Foundation, the New Legal Realism Project is a network of scholars who seek to develop an interdisciplinary paradigm for empirical research on law. | | | This paradigm will combine sophisticated consideration of legal issues, empirical research and social policy -- much as did the old legal realists, but with the benefit of several generations of new thinking in all of these areas. | | | One new development has been a greater empirical focus on the effects of law "from the bottom up." This bottom-up focus extends to the policy domain as well, where the new legal realist paradigm seeks to foster a "democratic" concern with the effects of law on people's everyday life and circumstances. |
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http://www.law.wisc.edu/ils/newlegal.htm
(189 words)
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| | The UNC Press, American Legal Realism and Empirical Social Science by John Henry Schlegel |
| | John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. | | | Related subjects: Law & Legal History; History/United States: General | | | He argues that empirical research was integral to Legal Realism, and he explores why this kind of research did not, finally, become a part of American law school curricula. |
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http://uncpress.unc.edu/books/T-1289.html
(227 words)
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| | Amazon.com: Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism: Books: Austin Sarat,Jonathan ... |
| | Exploration of legal issues through cultural analyses provides a rich supplement to other approaches—including legal realism, law and economics, and law and society. | | | Rules versus Relationships : The Ethnography of Legal Discourse (Chicago Series in Law and Society) by John M. Conley | | | Contributors confront the deep connections between law, social science, and post-World War II American liberalism; examine the traffic between legal and late-nineteenth- and early-twentieth-century scientific discourses; and investigate, through a focus on recovered memory, the ways psychotherapy is absorbed into the law. |
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http://www.amazon.com/exec/obidos/tg/detail/-/0822331438?v=glance
(739 words)
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| | Sovereignty and Neutrality after Legal Realism |
| | The three-mile limit for offshore jurisdiction had long been a foundational concept in American policy regarding ocean law when, beginning in 1935, this concept was challenged by a group of scholars and lawyers who carried Legal Realism into the arena of international law. | | | Carrying Legal Realism into the Arena of International Law, 1935-1953: The Debates over Neutrality, the Rule of Law, and Ocean Resources | | | Also considered very briefly will be the subsequent efforts of the U.S. Government and other states to formulate new legal principles for control of high-seas resources, culminating in the UN Law of the Sea movement. |
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http://www.h-net.org/~law/ASLH/conferences/1998conference/102398130c.htm
(326 words)
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| | Learn more about Realism in the online encyclopedia. |
| | Here "realism" is contrasted with "conceptualism" and "nominalism" (or Platonism). | | | Confusingly, various philosophical unrelated positions, in some cases diametrically opposed ones, are termed "realism." In large measure this depends on which debates are active at the time, and may be encouraged by the fact that a philosophical position often looks stronger if you attach the word "real" to it. | | | This can be called "realism about universals." Universals are terms or properties that can be applied to many things, rather than denoting a single specific individual--for example, red, beauty, five, or dog, as opposed to Socrates or Athens. |
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http://www.onlineencyclopedia.org/r/re/realism.html
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| | Legal Realism Timeline |
| | He also used the case to introduce what came to be called the "Brandeis brief," which is a lengthy presentation of empirical data to support a legal argument. | | | The Court struck down a 1918 federal law implementing a minimum wage for women in DC. | | | Muller was argued by Brandeis, who sealed his fame with the victory. |
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http://www.georgetown.edu/faculty/blattnew/cons/timeline.html
(1616 words)
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| | Alf Ross: Towards a Realist Critique and Reconstruction of International Law |
| | The question asked by this article is whether it is possible to adopt a conception of international law based in one way or another on a species of legal realism. | | | Against a background of various shades of realism in legal theory, I finally and forcefully propose a confrontation between Ross and three other figures of the legal-realist pantheon, in search of a form of lineage between legal and political realism that may support the coherence of Alf Ross' theoretical trajectory. | | | After presenting Ross' legal realism as essentially guided by a metatheoretical standpoint in turn dictated by an implicit allegiance to philosophical positivism, the article reconstructs the meanders of the critique of international law and its subsequent reconstruction as flowing from Ross' legal scientism. |
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http://www.ejil.org/journal/Vol14/No4/art3.html
(348 words)
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| | Oxford University Press: Legal History |
| | You are here: OUP USA Home > U.S. General Catalog > Law > Legal History | | | We value your opinion and feedback about our website. |
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http://www.us.oup.com/us/catalog/general/subject/Law/LegalHistory?view=usa&ci=0195071239
(175 words)
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| | Return of Legal Realism |
| | Relishing Samuel Alito's impact on the Supreme Court, pro-life bloggers are already laying strategies to win hearts and minds in a transformed legal landscape. | | | As Samuel Alito cruises toward confirmation, the process of vetting him demonstrates the price we pay for one-party government. |
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http://www.thenation.com/docprem.mhtml?i=20010108&s=levinson
(397 words)
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| | SSRN-American Legal Realism by Brian Leiter |
| | This essay sets out the main elements of the revisionary and philosophical interpretation of the jurisprudence of American Legal Realism that I have developed in a series of articles over the last decade. | | | The revisionary reading also debunks certain popular myths about Legal Realism, like the following: the Realists believed "what the judge ate for breakfast determines the decision"; a critique of the public/private distinction was a central part of Realist jurisprudence; and the Realists were committed to an incoherent form of rule-skepticism. | | | THE BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, W. Edmundson & M. Golding, eds., Oxford: Blackwell, 2003 http://ssrn.com/abstract=339562 |
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=339562
(241 words)
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