The Missing Normative Dimension in Brian Leiter's 'Reconstructed' Legal Realism

Abstract

This article compares the view of Legal Realism presented by Brian Leiter with the 1920s and 1930s torts scholarship of Leon Green and Karl Llewellyn, two giants in American law. This scholarship confirms Leiter’s claim that the Legal Realists made the descriptive claim that the decisions of appellate courts fall into discernable patterns correlated with the underlying factual pattern, or “situation type,” as opposed to formal legal rules. On the other hand, this scholarship contradicts Leiter’s contention that the Legal Realists were normative “quietists” whose lack of a normative agenda stands in contrast with the ambitious normative agenda of contemporary jurisprudents like Ronald Dworkin. Green and Llewellyn believed that courts have a legislative, as well as an adjudicatory role – and that policy plays a role in their lawmaking. Indeed, they put forth an ambitious normative framework, identified today as the theory of enterprise liability, that the California Supreme Court, beginning in the 1960s, would write into law as it adopted expansive liability rules, including the doctrine of strict liability, and eliminated or limited defenses and no-duty rules that protected even negligent defendants from liability. Thus contrary to what one would expect from reading Leiter, in their tort scholarship Green and Llewellyn resemble Dworkin precisely because they wanted to reform the practice of judges in line with their normative theories.

Keywords: legal philosophy, jurisprudence, torts, legal realism, enterprise liability, legal history

JEL Classification: K33