Grant Gilmore

Legal Realism: Its Cause and Cure

From time to time there arises a school of legal thought which undertakes to make a clean sweep of the errors of the past and establish truth. In this country, for half a century, such a movement has been running its course under the name of Legal Realism. Today the controversy over realism seems to have died out; the time may have come when we can profitably inquire what it was about. When we look back at any intellectual movement which violently engaged mens minds, it is easy to see that the premises were shaky and the promises overstated. But that is not enough, The mere fact that a particular way of thinking absorbed the best minds of a generation puts us on notice that something fundamental was going on-even though, from our vantage point in time, we may be able to see that what was going on was not what, at the time, seemed to be going on. At first glance realism appears to have been a high-level jurisprudential or philosophical movement, based principally in the law schools, which offered a critical analysis, of a destructive or negative character, of certain then widely accepted theories of law. While the realist controversy was at its height, it seemed to be a matter of abstract academic debate, at a far remove from the work-a-day questions which concern the practicing lawyer and his clients. I believe, however, that the academic philosophers and the practicing lawyers were closer together than they realized or would have cared to admit: realism was the academic formulation of a crisis through which our legal system passed during the first half of this century. I shall draw your attention to some aspects of that crisis and how they were met: first, however, it will be helpful for us to consider the nature of the realist criticism. Legal realism may be viewed as an elaborate commentary on an attitude toward law symbolized by the figure of that master of epigram, Justice Holmes.

The Age of Antiquarius: On Legal History in a Time of Troubles

During the greater part of the past hundred years the American law schools enjoyed a spectacular success. The students, the professors, even the deans, shared a buoyant self-confidence, an ebullient enthusiasm, a pervasive intellectual and spiritual euphoria. It is only during the past twenty years or so that we have begun to doubt, to question ourselves, to wonder whether, after all, we were on the right track. The selfconfidence of our predecessors has given way to a disquieting intellectual disarray. Various proposals have been put forward in the attempt to rekindle the enthusiasm of the past in the service of new causes. One such proposal, which has recently enlisted a considerable amount of support, is that, abandoning the antihistorical bias which has characterized most American legal writing in this century, we should, at long last, become historians and turn our energies to the reconstruction of our long despised past. If indeed the study of law is to become a branch of the study of history, we will do well to give some thought to the problem which the adoption of an historical approach-to law or anything else-poses in the declining years of the twentieth century. The legal profession in this country has always taken pride in being up to the minute. This present-mindedness has indeed been quite as apparent in the law schools as in the marketplace. Our case books must be revised every year or two, so that the old cases can be weeded out and replaced by new ones. Our treatises must receive annual infusions