Schlegel Responds to Leiter on Legal Realisms, Old and New

OUR NEXT GUEST BLOGGER:  Schlegel!  on Leiter

We welcome Schlegel! of SUNY-Buffalo Law School, who has sent us a comment on Brian Leiter’s recent article about “Realism, Old and New”.  This will be followed by some additional posts on the subject of defining New Legal Realism.  We welcome comments that contribute to a substantive conversation at newlegalrealism@gmail.com.

I am pleased that Brian Leiter (as well as anyone else) likes my old book about American Legal Realism.  And I say this, despite the fact that he expresses distaste for the work of my personal hero, Underhill Moore.  Moore was a lone scholar of singular vision who cared nothing about what the world thought of that vision.  As such, he can provide a particularly appropriate model for scholarship in these days of institutional branding and endless scholarly self-promotion undertaken amidst the tyrannical sub-disciplinary imposition of scholarly orthodoxy.  And I have more than once opined, in print and otherwise, that I think that Leiter’s recognition of Legal Realism as a species of philosophical naturalism is the most important thing said about the subject in many, many years.  The longstanding emphasis on Realism as a species of legal positivism badly needed correcting.  But I have done very little reading, talking or writing about Realism for the past ten or so years as I followed Moore’s example and late in life turned my attention to an entirely new topic – law and economy in the Twentieth Century, a project that to date has seen only one substantial piece in print.  So, when my long time friend, Stewart Macaulay, asked me what I thought of an excerpt from this recent paper of Leiter’s about Legal Realism, I felt obliged to read the entire paper before I commented.

I enjoyed that paper, though I am completely bewildered to find that it was prepared for an international conference on Legal Realism.  Most of the attendees were not historians it seems, nor, I gather, philosophers.  What can such a gathering be about, if not history or possibly philosophy?  Still, I will go on without an answer to my question, as over time I have learned to do.

In his paper Leiter first clears up the relationship between American Legal Realism and the Scandinavian version, to my satisfaction at least, and then does a first rate job of exploring the relationship between some of Herman Oliphant’s work on judicial decision-making and Karl Llewellyn’s similar work, work that for my taste is properly called empirical.  However, what seems to me odd about the paper is Leiter’s assertion that this latter body of work is what somehow defines Legal Realism.

To support this assertion Leiter distinguishes between “empirical” and “social scientific” research.  I can see nothing particularly wrong with his decision to do so, though I would not do likewise for to me one of these terms is a sub-category of the other.  His rhetorical strategy then is to ignore all of the work done in the implied continuum between case law realism of Oliphant and Llewellyn and the social science of Moore’s parking studies.  This doesn’t make me happy, but given that Leiter is only interested in “the Skeptical Doctrine,” as he puts it, about judicial decision making, it is not surprising, since most of the work in between is not directed to judicial decision-making (nor is Moore’s parking research, though this is not true of his empirical studies of negotiable instruments law, and then there is Frank’s difficult to classify work.)

It seems to me that in this piece Leiter is really engaged in an argument about the nature of Legal Realism.  He has a quite firm opinion on this subject, which I don’t share, but such a situation is quite normal for me.  In my narrow role as an historian I doubt that the historical record is likely to show that his argument is true.  As best I can tell, the American Legal Realists engaged in at least five activities: They critiqued the doctrinal results of what they saw as legal formalism, attempted to understand judicial decision-making, tried other types of empirical research in law (most often modest methodological improvements on the Cleveland Crime Survey), worked toward reforms of legal education, and participated in the activities of the New Deal administration of Franklin D. Roosevelt.  They may also have groused a lot about the structure of the American economy, but surely did not leave much, if any, scholarly record of that grousing.  Realism, as an historical matter, is that mix.

Now one might argue that the most distinctive work of the American Legal Realists was the work Oliphant and Llewellyn undertook.  Such is a sensible argument, though again, not one I happen to agree with, as ought to be clear from the effort that I put into the book I wrote about Realism.  But distinctiveness does not easily and directly transfer into essence or nature, at least unless one is narrowly focused on necessary and sufficient conditions as defining such.  As an historian I am not so focused.  But as an historian I am interested in the long run of attempts somehow to claim to know what the essence or nature of Realism is either for the purpose of assigning blame to it for something or of asserting the claim that present work is somehow lineally related to it.

On the blame side, Lon Fuller’s “Law in Quest of Itself” started an activity that was extended by, among others, Henry Hart and the Legal Process scholars, H.L.A. Hart and some of his analytic successors, Ronald Dworkin and most recently Brian Tamanaha.  On the claim side one must include my friends engaged in the Law and Society enterprise and those in Critical Legal Studies.  I recently hazarded the possibility that the blame side is likely a pawn in arguments about the rule of law.  As for the claim side, noble parentage is regularly thought to embellish the life of a foundling.

The interesting thing about Leiter’s assertion about the nature of Legal Realism is that it seems to participate in neither the blame or claim enterprise, but mostly to express a preference for certain types of empirical work.  That preference too is worth pondering.  I have grown quite tired of the endless methodological extensions of or refinements to the law on the books and the law in action trope.  As a form of critique it has proven remarkably ineffective.  Thus, for some time now the job of finding regularities in this enormous body of work, regularities beyond the easy candidates of gender, ethnicity, race and class, has been calling for academic attention, mostly in vain, though here I need to note that Stewart once tried to start the activity, and in a paper given in Buffalo I might add.  Perhaps, Leiter shares my tiredness.  Perhaps not.  Perhaps there is something in the absence of “American” before “Legal Realism” that the historian in me fails to understand.  Perhaps not.

John Henry Schlegel
SUNY/Buffalo  Law School

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