As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is “more malleable, less determinate, and less causal of judicial outcomes” than is traditionally presumed. Judges in this view are taken to decide cases based on what they consider “fair” under the circumstances, “rather than on the basis of the applicable rules of law.” Judicial reasoning, the Realists argued, was rarely ever the “constrained product of legal doctrine and legal materials alone.” A hallmark of Legal Realism was therefore pervasive “skepticism” about the constraining effect of legal doctrine on judicial opinions and scholarly critiques of judge-made law. The constraint of legal doctrine was thus believed to be mythical.
Judges | Law | Rule of Law
The Constraint of Legal Doctrine,
U. Pa. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3144