Realism, American Legal

James E. Herget

American legal realism was an intellectual movement among legal scholars in the United States in the 1920s and 1930s. Often characterized as a reaction against formalism, legal realism viewed law as process rather than doctrine and emphasized its indeterminacy. The term realism as used here is different from the term realism used in epistemology. Here realism derives from the notion that inquiry should focus on the “real” reasons why judges decide cases in contrast to the formal or “legal” reasons given in judicial opinions. Realism was preceded by a similar movement in Germany around 1900 called the free law movement (or school) and was anticipated by many of the writings of Roscoe Pound (1870–1964) in the first two decades of the twentieth century. The work of Oliver Wendell Holmes Jr. (1831–1935) also foreshadowed realist insights. The publication of state and federal appellate court reports began to flood law libraries at ...

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