Legal Realists

The Legal Realists were a group of influential early twentieth century lawyers and legal scholars who reacted against an orthodox style of legal reasoning known as ‘‘formalism.’’ Formalism holds that particular legal results are ‘‘objectively’’ deducible from abstract principles.

In contrast, Realists viewed legal outcomes to be a function of reasons not unique to law, including such factors as morality and social and economic perspectives. Realists also emphasized the importance of understanding law in practice: how do legal rules affect society? Realists attacked formalism both for its reliance on deductive reasoning, as well for the particular outcomes generated by classical judges. In result, formalist judges typically favored corporations over consumers, assisted businesses in their fight against collective labor organizing, and interpreted the ‘‘due process’’ clause of the Constitution to limit state legislation on economic matters such as setting minimum wages and maximum hours. Many, but not all, Realists were politically progressive.

The most famous precursor to the Realists and harsh critic of formalism was Oliver Wendell Holmes, Jr. Holmes urged that judges acknowledge explicitly what they inevitably did implicitly—to decide cases on the basis of legislative policy. One of Holmes’ most famous quotes, ‘‘The life of the law has not been logic, it has been experience,’’ has frequently been read as frontal assault on the formalist focus on deduction from abstract principles.

The early 1920s saw a remarkable increase in scholarship from what eventually became known as Legal Realists. Legal scholars such as Walter Wheeler Cook, Jerome Frank, Morris Cohen, Karl Llewellyn, and Underhill Moore, as well as the economist Robert Hale and the philosopher Felix Cohen, became identified with Legal Realism. Many Realists—including Frank, William O. Douglas, and Felix Frankfurter— served in government during the New Deal and helped develop many administrative agencies.

During the ‘‘Lochner era’’ of the early twentieth century, the Supreme Court invalidated social welfare legislation, outcomes frequently justified using formalist logic. Legal Realists challenged the Court’s judgment as wrongheaded, arguing that the Constitution did not embody a particular economic theory. Legal Realists provided intellectual grist that persuaded the Court finally, by 1937, to accept the judgment of Congress and state legislatures on most economic legislation.

In contrast, the early twentieth century Supreme Court gave scant protection to civil liberties. Two justices influenced by Realist thinking, Holmes and Louis D. Brandeis, both wrote dissenting opinions in free speech cases that proved extremely influential to justices who came later. Both Frankfurter and Douglas eventually served on the Warren Court that recognized many new individual rights.

The ‘‘school’’ of Legal Realism petered out in the 1940s in the United States. Yet the long-term impact of Legal Realism—especially on contemporary law and legal thinking—has been profound. Most legal scholars today embrace much Realist insight: that legal rules are derived from considerations such as moral perspectives, as well as economic and social principles; judges should consider carefully the impact of their decisions on society. Although the earlier Realists wrote little about Constitutional law, their influence can be seen in the ferment of the Warren Court era and the willingness of that Court to transform civil rights and civil liberties into their modern form.

JOHN T. NOCKLEBY

References and Further Reading

  • Fisher, William, Morton Horwitz, and Thomas Reed. American Legal Realism. New York: Oxford University Press, 1993.
  • Holmes, O. W. The Common Law. 1881.
  • Horwitz, Morton J. The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.
  • Kalman, Laura. Legal Realism at Yale, 1927–1960. Chapel Hill: University of North Carolina Press, 1986.
  • Leiter, Brian R. ‘‘American Legal Realism,’’ in Edmundson, W., and M. Golding, eds. The Blackwell Guide to Philosophy of Law and Legal Theory. Oxford: Blackwell, 2003.

See also Brandeis, Louis Dembitz; Douglas, William Orville; Frankfurter, Felix; Freedom of Speech: Modern Period (1917–Present); Holmes, Oliver Wendell, Jr.; Warren Court

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