Legal Realism and Legal Doctrine

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The American Legal Realists did not reject doctrine, because they did not reject the idea that judges decide cases in accordance with normative standards of some kind: “doctrine,” after all, is just a normative standard about what should be done, and not necessarily one formulated and made explicit by a statute, a court, or a treatise. A judge who decides cases based on the norm “this breach of contract is efficient” still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non‐legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely, and it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this Symposium show, precisely because the realist law reform movement was successful in so many arenas.

All of these points were driven home to me almost twenty years ago when I was teaching at the University of Texas and had the opportunity to talk at some length with my colleague, the late great Professor Charles Alan Wright, then the President of the American Law Institute (ALI) and the senior author of perhaps the most important and influential treatise in American law of the past half‐century, Federal Practice and Procedure. Wright seemed a quintessential “doctrinalist,” perhaps the greatest and most influential of his generation, and yet he was also an unabashed Legal Realist. Understanding that apparently puzzling combination of attributes is essential to understanding the real essence of American Legal Realism.

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