Monday, April 09, 2007

The Generations of Legal Realism


I think Steve's points about legal realism in his last post are very interesting but I do want to correct one claim that is not central to his argument.

There were, in fact, several generations of legal realists. The first generation of people, whom we might call proto-realists, includes people like Oliver Wendell Holmes, Jr. (b. 1841), John Chipman Grey (b. 1839), Roscoe Pound (b. 1870), Arthur Corbin (b. 1874), and Wesley Hohfeld (b. 1879); they are all very different from each other; some of their thought is not very realist in our modern sense of that word, while the thought of others like Pound-- whose views were famously attacked by Karl Llewellyn-- is actually quite consistent with what we now think of as legal realism.

In any case, these proto-realists greatly influenced the next generation, which includes Walter Wheeler Cook (b. 1873), Thomas Swann (b. 1877), Underhill Moore (b. 1879), Morris Cohen (b. 1880), Walton Hale Hamilton, (b. 1881), Robert Hale (b. 1884), and Herman Oliphant (b. 1884). Next come Charles E. Clark (b. 1889), Jerome Frank (b. 1889), Hessel Yntema (b. 1891), and Thurman Arnold (b. 1891). Call them generation two-and-a-half. Folks like Karl Llewellyn (b. 1893), Wesley Sturges (b. 1893), William O. Douglas (b. 1898) and Felix Cohen (b. 1907) are younger than most of the second generation, and closer in age to the next generation, which mostly contains the students of the second generation. That third generation includes people like Friedrich Kessler (b. 1901), Fred Rodell (b. 1907), Harold D. Lasswell (b. 1902), Grant Gilmore (b. 1910), and Myres S. McDougall (b. 1906).

By the time you get to the 1960's you have a fourth generation of people like Charles Alan Wright (b. 1927), Guido Calabresi (b. 1932) and John Hart Ely (b. 1938)-- and many others besides-- who are students of the second and third generation realists (although strongly influenced by the legal process school) but who are now associated with other movements in legal scholarship. Still later on you also have a wide variety of self-described realists whom you might call the fifth generation, and even younger scholars like myself who embraced both legal realism and critical legal studies at various points in their career. For a history of the first, second, and third generations, an indispensable source is Laura Kalman's book, Legal Realism at Yale 1927-1960, as well as William Twining's biography of Karl Llewellyn and John Henry Schlegel's American Legal Realism and Empirical Social Science; while Brian Leiter's most recent book on American Legal Realism gives a philosophically sophisticated and sympathetic account of what the realists were trying to do.

It would be more correct to say that legal realism lasted several generations, but gradually petered out and dissolved into general assumptions about the law shared by the vast majority of American law professors. These shared assumptions are part of what Brian Tamanaha of this blog denounces as law's excessive instrumentalism. Certainly Richard Posner's deep skepticism about legal reasoning and his embrace of an empiricist pragmatism owes a great debt to legal realism; and so too does the widespread acceptance of economic analysis, various forms of empirical social science, and public choice theory in the legal academy. Even the resurgence of formalism in the late twentieth century is simultaneously a reaction to legal realism and an acceptance of its basic premises about how law is related to politics. Legal realism lives on in almost all American law professors these days. It-- and legal process-- are two of America's greatest contributions to legal thought.


That third generation includes people like Friedrich Kessler (b. 1901)

I probably shouldn't date myself like this, but Kessler was my Contracts prof my first year. An extremely nice, wonderful man.

Myres McDougal was born in 1906 in Burton, Miss.

Dear Shane:

Thanks for the information, which is now reflected in the posting.

How about weaving into this timeline the legal "unrealists", e.g. originalists, textualists, etc, for comparison?

Leave it to Jenya to lower the level of discourse...

I'm interested in the link between legal realism and "various forms of empirical social science." Would you include the pragmatists (esp. Peirce and Dewey) in that category, or perhaps the "new" schools of the 60s and their insistence on the scientific method as the primary framework for investigations?

I would actually include Prof, Felix Frankfurter in the list of proto-realists, if by that one means a rejection of "classical legal thought" and an appreciation of the interplay between ideology and judging.

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