Legal Realism, sometimes called “American Legal Realism”, is the most successful movement in 20th Century jurisprudence in the United States. Legal Realism is contrasted with the “Formalism” of 19th Century Anglo-American legal scholarship, which tried to put law on a scientific or logico-mathematical footing.
Legal Realism holds that law cannot be an abstract, logical discipline like mathematics. It has to be viewed in the context of history, the prejudices and politics of the person who make laws, and, if the law is to serve the greater good of society, legal policy must be shaped by scientific disciplines, such as sociology, economics and psychology.
Perhaps the high-water mark of Legal Realism was the Warren Court’s decision in Brown v. the Board of Education of Topeka, Kansas, 347 U.S. 483 (1954). In this case, the Supreme Court relied on sociological evidence that racially “separate” schools were not “equal” to repudiate the precedent of the “separate but equal” doctrine of Plessy v. Ferguson, 163 US 537 (1896). Science trumped stare decisis in setting policy, with (eventually) broad social implications.
Legal Realism as an academic pursuit flourished in the 1920’s and 1930’s. It had dynamic spokesmen who occupied key positions in academia, government and the Supreme Court. Its proponents achieved concrete, lasting reforms, such as the Uniform Commercial Code, Native American tribal sovereignty, and a whole host of legal doctrines that laid the foundation for the liberal judicial activism of the Warren Court.
Today’s “Critical Legal Studies” or “CLS” is arguably nothing more than Legal Realism dressed up in philosophical and political jargon which was fashionable in late 20th Century academia: such as “post-Marxism”, “Postmodernism” and “Feminist Jurisprudence”. However, outside of academia, CLS has little impact. There are no former CLS professors on the Supreme Court. While Justice Ruth Bader Ginsburg did important work for the rights of women earlier in her career, her style and thinking has little in common with Feminist Jurisprudence advocates like Andrea Dworkin or Catherine MacKinnon.
Jurists important to the movement include: