Weekly Topic: What do Realists Want?

As noted in class and in your readings, Critical Legal Studies and Legal Realists in general have been severely criticized for their non-normative, "quietistic" approach to legal philosophy. Leiter explains the criticism vis-a-vis legal realism as concluding "quietists hold that since the core claim reports some irremediable fact about judging, it makes no sense to give normative advice--except perhaps the advice that judges 'ought' to do what it is they will do anyway" ("Legal Realism," 277).

Moreover, Critical Legal Studies seems to amplify the claim by criticizing the positive empirical method of legal realism for assuming the empirical realities, such as the way the legal system affects the distribution of wealth in society, that it should be criticizing or, at any rate, analyzing. Critical Legal Studies thereby forfeits any systematic or theoretically coherent basis for legal interpretation that it might otherwise claim. The result, as Tushnet sees it, is that the "dominant position" within CLS amounts to an "interminable critique" of attempts to construct systematic theories of law, legal theory and legal practice.

This week I would like you to discuss the rationale for the "dominant position" in CLS, identifying its relation to realism, its methodology and its possible value or lack thereof. For instance, how does the "dominant position" apply to Economic Analysis of Law or Feminist Jurisprudence? Why might someone prefer one approach to another, or at least find one more credible than another? What common strengths or weaknesses apply to some rather than others or all three, together, as representatives of the realist tradition of legal philosophy?