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LWSO 201 (30)
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Legal Realism.docx

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Department
Law and Society
Course
LWSO 201
Professor
Robert Neil Huebert
Semester
Fall

Description
Legal Realism Judges do not adjudicate the law through a neutral application of legal rules but through extra-legal factors (social, cultural, psychological)  Legal Realism was a reaction to Legal Formalism Legal Formalism  Christopher Langdell (1826 – 1906) – Dean of Harvard Law School  Law is a set of formal legal rules, doctrines and principles underlying high court decisions  Law could only be discovered through a systematic analysis of the case law (ie: the Socratic method) Pragmatism  Need to look at the practical consequences of law on people’s lives  Rejects abstract concepts  Does law make a real difference in real people’s lives? Oliver Wendell Holmes (1841 - 1935)  The Path of the Law – Harvard Law Review  Became US Supreme Court Justice Buck v Bell (Pavlitch p. 57)  Carrie Buck was an institutionalized “feeble-minded white woman …the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child”  Application to have Carrie Buck sterilized under a Virginia Statute - “means of eradicating social problems for the benefit of society”  Holmes - “Three Generations of Imbeciles are Enough”  “Practical common sense … sterilization of mental defectives … can be of benefit to themselves and to society”  Eugenics were part of the “Progressive” movement at that time Lessons from Holmes  “The prophesies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”  Ask the “Bad Man” what the courts will do. Roscoe Pound (1870 - 1964)  Another Dean of Harvard Law School (shades of Plato’s Academy?) Jurisprudence (1959)  Three different ways that law has been defined:  A legal order  Authoritative decisions that allow us to predict the law  A system of judicial and administrative processes  These can be unified into one science – law as social control o Focus on social processes as a science. Main purpose – to ensure the advancement of society. We should focus on social pro
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