Legal Realism

The first strand is marked by the nihilistic view that law represents the will of society's

Oliver Wendell Holmes Jr. started the legal realism movement when he published his book The Common Law in 1881.
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most powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he tells Socrates that in every government "laws are made by the ruling party in its own interest," and "the ruling element is always the strongest." When courts speak in terms of what is right and just, Thrasymachus said, they are speaking "in the interest of those established in power." Justice Holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the natural outcome of dominant public opinion (LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).

Realists argued that law frequently equates the dominant power in society with pervasive economic interests. During the incipience of the U.S. legal realism movement in the nineteenth century, the United States was transformed from a static agrarian economy into a dynamic industrial market. Realists asserted that U.S. COMMON LAW facilitated this transformation in a number of ways. Horwitz reported in The Transformation of American Law that when interpreting an insurance contract, one judge remarked in 1802 that courts must not adopt an interpretation that will "embarrass commerce." Instead, the judge said, courts are at liberty to "adopt such a construction as shall most subserve the solid interests of this growing country."

To help subsidize the growth of a competitive economy in the nineteenth century, realists have argued, U.S. judges commonly frowned on claims brought by litigants seeking monopolistic power. For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 A.D. 270 (1805), a downstream landowner asked the New York Supreme Court to grant him the exclusive right to use river water for commercial activity despite any injuries that might result to upstream owners. The court refused to grant such a right because if it did "the public would be deprived of the benefit which always attends competition and rivalry." In a subsequent case, the New York Supreme Court held that a landowner's right to enjoy his property could be "modified by the exigencies of the social state" (Losee v. Buchanan, 51 N.Y. 476 [1873]). The court added, "We must have factories, machinery, dams, canals and railroads."

At the same time the common law was facilitating economic expansion, realists claimed that it was also helping to increase the number of exploited U.S. citizens. Realists were skeptical of the traditional description of the U.S. economy as a free market. They felt that the economy was regulated by common-law principles that safeguarded the interests of society's wealthiest members. In support of this contention, realists pointed to landlord-tenant laws that entitled lessors to evict lessees for technical breaches of their lease, LABOR LAWS that allowed management to replace striking workers, and contract laws that permitted employers to terminate their workers without justification.

The realists' economic analysis of law spawned two related movements in U.S. jurisprudence that occupy polar extremes on the political spectrum. One is the conservative law and economics movement, whose adherents, most prominent of whom is RICHARD POSNER, believe that common-law principles must be interpreted to maximize the aggregate wealth of society without regard to whether such wealth is distributed equally. The other is the liberal CRITICAL LEGAL STUDIES movement, whose adherents, called crits, believe that the law must be utilized to redistribute wealth, power, and liberty so that every citizen is guaranteed a minimum level of dignity and equality.

Since the mid-1900s, the crits have focused less on what they perceive as economic exploitation in the law, and more on what they see as political exploitation. In this regard they have assailed various U.S. courts for advancing the interests of adult, white, heterosexual males at the expense of women, blacks, and homosexuals. The crits have commonly referenced three cases to corroborate this point: McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), in which the Supreme Court rejected a constitutional challenge to CAPITAL PUNISHMENT despite evidence that African American defendants are almost three times more likely than whites to receive the death penalty for murdering a white person; Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), in which the Supreme Court ruled that the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT provides less protection against discrimination for women than for members of other minority groups; and Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in which the Supreme Court refused to recognize a constitutional right to engage in SODOMY. However in 2003, the Supreme Court overturned the Bowers holding in LAWRENCE V. TEXAS 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508.