Legal Realism

Question 1

What are the characteristics of legal realism?

Answer 1

• judicial decisions are always influenced by exttra legal factors
• law is a complex set of relations/human processes based on subjective judicial decision making
• theory of pragmatism supports the view that practical consequences of law are part of the truth of law
• analyzes how judges make legal decisions, trying to understand law in new ways as well as using law and social sciences to pursue progressive socio-legal reforms.

Question 2

Oliver Wendell Holmes

Answer 2

• American judge, endorsed negative eugenics in Buck v Bell decision. His decision reflects legal realist position

Question 3

Roscoe Pound

Answer 3

• law as social control can be studied empirically and used to improve society. l
• law’s main purpose is to ensure the survival and advancement of society.

Question 4

What are the various stages that law advances through, according to Roscoe Pound?

Answer 4

1. concerned with public peace
2. concerned with individual rights
3. socialization of law dealing with diverse interests.

Question 5

Llewellyn

Answer 5

law is an institution that performs ‘law jobs’ crucial for society’s survival.
- judges rely on intuition and experience rather than formal logic

Question 6

What are the 5 law jobs that law institutions perform? (Llewellyn)

Answer 6

1. disposing of trouble
2. regulates conflict
3. helps to decide and regulate institutions of governance
4. involved with organization of society as a whole
5. involved with juristic methods that maintain the performance of other law jobs.

Question 7

Frank

Answer 7

judges are influenced by psychological factors and judicial decisions are based on more subjectivity than objectivity

• fact skeptic, it is impossible to predict the future decisions of judges.
• judges are vulnerable to prejudices

Question 8

What are the criticisms of legal realism theory?

Answer 8

law is limited to a focus on judges while excluding legal processes and actors from analysis

• judges are capable of moral reasoning
• judges apply legal rules and norms when deciding a case
• judges are aware of extra legal factors.

Question 9

Case Study: People v Turner

Answer 9

jury convicted Turner, judge sentenced him to 6mos/3mos probation, media criticized judge

• many legal actors defended Judge Persky and condemned his removal
• influenced Cali legislature to toughen sexual assault laws
• Glamour named Emily Doe woman of the year.