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March 7, 2008

Department of Scholarly Howlers...or How Seriously Do Teachers of Philosophy of Law Take Realism?

Jeremy Telman (Valparaiso) writes:

[N]o course on jurisprudence at a U.S. law school--even if taught by a philosopher of law persuaded by Hart's critique [of legal realism]--would ignore Realism (p. 8).

The footnote accompanying this sentence reads:  "For example, despite his dismissal of Realism as having had no impact on Anglo-American jurisprudence in Rethinking Legal Realism, Brian Leiter's current syllabus [for jurisprudence] begins with three weeks on Legal Realism."  Of course, I never dismissed Realism for its having had no impact on Anglophone jurisprudence--my essay is devoted to showing how unfortunate that dismissal is--and I would have thought (vanity of vanities, I know, but I would think someone making claims about my views might have read my work) that I had a modest reputation as a major critic of Hart's misinterpretation of legal realism.  Indeed, someone who had read only Rethinking Legal Realism, and nothing else, would have learned as much about my views.

But putting the scholarly carelessness of Professor Telman's essay to one side, the interesting empirical question raised by his comments is this:  how many teachers of "jurisprudence," who actually know something about philosophy, include American Legal Realism in their course?  And how much do they include?  Signed comments only; post only once (as I'm travelling a bit the next week, so comments may take awhile to appear).

UPDATE: For those of you coming here via Frank Snyder, a law professor at Texas Wesleyan University:  I do not know why Mr. Snyder--who has sent me weirdly abusive e-mails in the past about other matters--has launched into an irrelevant ad hominem attack on me.  As I wrote to him (he does not quote this):

The 'truth' about this matter isn't subtle or complex.  Professor Telman, pretty obviously, didn't read my article.  His misrepresentation is in an article he posted on SSRN, which is how I found it....[I]f you say Professor X holds the opposite of the view he holds, that's a "howler."  Not a big deal, just what it is.  You really must be a very sensitive fellow. I'm sorry if this upset you.  In the future, though, please try to act like a professional.

Mr. Snyder, alas, is one of those delicate souls who has not spent much time around philosophers.  So it goes.

I would still welcome feedback from those philosophers who teach jurisprudence about their coverage of Realism.

Posted by Brian Leiter on March 7, 2008 in General Jurisprudence | Permalink


I have taught American Realists every time I have taught a survey course in jurisprudence. (I have not always taught Scandinavian Realists.)

I am not a sociologist, but Prof Telman's thesis about the modest reception of Kelsen in American law schools doesn't strike me as plausible.

For one thing, Kelsen's reception wasn't better in the English law schools, where realism and "Socratic" instruction were (and remain) intellectually and institutionally marginal. For another, it is hard to see how Hart's works would be any more congenial to such an audience, and yet Telman says (p.8) that Hart is one of the two legal philosophers with whom American law students are likely to be familiar. Finally, I see no evidence for the assertion that Kelsen's work "could not be accommodated within the newly-created discursive practice of the legal professoriate". If Telman is right, it *was not in fact* accommodated. But why think it *could not have been* accommodated? The "discursive practice" accommodated other intellectually and institutionally awkward ideas--think of the way a vulgar foucauldianism was absorbed by socio-legal scholars based in American law schools.

I speculate that there are simpler explanations. First, Kelsen is a demanding philosopher to read. Most law professors have no training in philosophy, and no familiarity with the sort of concerns that motivated his theory. Second, the English translation of the Pure Theory is just about unusable, and the General Theory not much better. (And in any case Kelsen isn't much of a stylist!) Kelsen himself was neither a young man nor a showman when he arrived in the US; he lacked any personal charisma that might have engaged broader audiences. Third, apart from his work on international law, Kelsen took little interest in the parochial battles over things like judicial review that raged among American law professors. His work would therefore have probably struck them as boring and irrelevant to the concerns that paid the bills.

Posted by: Les Green | Mar 9, 2008 6:50:25 AM

When I took Jurisprudence at Penn Law we spent very little, if any, time on the realists. We might have talked about Holmes a bit and read a bit on it (3 pages, I think) from the Murphy/Coleman volume in a course pack, while discussing Hart's criticisms. Posner's version of law and economics was discussed in a way that tied it (rightly, I think) closely to realism. But, very little time was spent on the topic. I also TA'd the undergrad philosophy of law class at Penn in the philosophy department and there again very little time was spent on realism- a bit from Holmes, a bit on Hart's crtique, and nothing more.

On Kelsen it seems relevant to me that in the US he taught in a political science department, if I recall correctly, and so would have had, for institutional reasons, less chance to directly influence either future law professors or philosophers. This, of course, is surely not the only reason for his rather modest impact on legal philosophy in the US.

Posted by: Matt Lister | Mar 10, 2008 11:19:38 AM

The jurisprudence course I took last year spent one session on realism. We read Holmes' The Path of the Law and Cohen's Transcendental Nonsense. In class we discussed The Path of the Law only, focusing only on its failure to attend to the "internal point of view".

Posted by: JD Student | Mar 16, 2008 2:29:30 AM

In my undergraduate jurisprudence course, we spent a week or so on legal realism and critical legal studies. My professor, a Harvard Law alumnus, assigned readings by Llewellyn, as well as Minow and Tushnet, two Harvard Law professors. He focused more on crit studies, which suggests to me, at least, where his 'loyalties' lie. I am most drawn to crit studies, but look forward to learning more about other legal theories in law school. Perhaps I'll end up doing so under Dr. Leiter's tutelage .

Posted by: Aspiring JD student | Mar 16, 2008 9:49:33 PM

I took a course on Jurisprudence taught by Lew Sargentich at Harvard this fall. I would say that 1/3 of the course was dedicated to legal realism. The readings included full or partial versions of articles by Holmes, Oliphant, Llewellyn and (Felix) Cohen. There was a lot more legal realism than H.L.A Hart. Kelsen was only mentioned in connection to the problem of interpretation and underdeterminacy.

Apart from that, two legal-theoretical, though non-jurisprudential, courses taught almost every year for the last five years pay much attention to American Legal Realism. One is Duncan Kennedy's Private Law Theory seminar, which covers Holmes, Hohfeld, Felix Cohen, Llewellyn and (to the extent that they are legal realists) Morris Cohen and Robert Hale. The other course is called "American Legal Thought" and is based on a collection of essays edited by Terry Fischer and David Kennedy and titled "The Cannon of American Legal Thought", which has a whole section on legal realism, encompassing classic articles by Holmes, Hohfeld, Hale, Llewellyn and Hale (as well as Dewey's famous essay "Logical Method and Law"). The course was taught by David Kennedy last year.

Interestingly (and revealingly for a foreigner such as me) the canonical realist writings, while dismissed or simply ignored in many jurisprudence courses in the US, seem to represent a good portion of the material taught in first-year courses, such as Property, Contracts and Torts. It is also obvious to me, as a foreigner, that this does influence, perhaps decisively, the way in which young American jurists think or argue about legal questions.

Posted by: SJD candidate | Apr 4, 2008 6:05:25 PM

Thanks for the insight on what's going on at HLS. It's probably significant though that none of these teachers are philosophers or are even obviously conversant with philosophy.

Posted by: Brian Leiter | Apr 4, 2008 6:09:10 PM

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