Monday, October 17, 2022
Etchemendy on "Legal Realism and Legal Reality"
This is the best paper on legal realism to appear in a law review in many, many years. It's telling about the unreliability of the student-edited law reviews that a paper of this caliber should appear in the Tennessee Law Review (kudos to them for picking it up), while much weaker articles have appeared in Texas Law Review, California Law Review, and other more prominent reviews. (Equally disappointing are pieces that rehash points I made a quarter-century ago, and try to make them look new by completely misrepresenting my prior work--but the uneven and often irresponsbile scholarship on legal realism is a story for another day!)
Here are a few things law professors should know by now about American Legal Realism: (1) Robert Hale was a marginal figure in the American Realist movement, and was so regarded by other leading Realists (the critique of the public-private distinction was orthogonal to most of what the American Realists worked on); (2) Jerome Frank's views were an outlier among the American Legal Realists--the vast majority of Realists did not think law was as radically indeterminate as he did; (3) Most American Realists thought that appellate court decisions fell into predictable patterns that tracked "situation-types"; judges, on this view, responded to situation-types in predictable ways because they shared normative judgments about how those situations should be dealt with (sometimes this involved judicial sensitivity to non-codified norms of commercial practice, sometimes proto-economic efficiency judgments, sometimes judgments of "fairness"); (4) restatements of the law should aspire to make official statements of doctrine more fact-specific, so that the rules actually picked out the normatively relevant situation-types; (5) legal realists arguments for the indetreminacy of law presuppose a legal positivist account of legal validity; and (6) the long-moribund Critical Legal Studies had little to do with American Legal Realism.
Etchemendy's contribution in the paper linked at the start is to show that the Realist arguments operate at the epistemic, rather than metaphysical, level. I think that is right, although I think he understates the extent to which epistemic indeterminacy can license metaphysical conclusions. Thanks to his crisp formulation of the issue, other scholars can now take this challenge up.