A defense of realism
crossf at MAIL.UTEXAS.EDU
Tue Apr 24 12:36:54 PDT 2001
Nothing about legal realism intrinsically necessitates putting aside our
aspirations. To some degree, realism may call those aspirations into
normatively. However, many realists, certainly myself, put significant value
on the traditional aspirations.
I would argue that a measure of realism is essential to progress toward
those aspirations. If we fail to scrutinize the extralegal factors
affecting decisions, it is all too easy for judges to evade or manipulate
the law to reach political ends. Only if we cast a realist skeptical eye
on the judiciary can we hold them to account. Moreover, recognition of
realism's reality can be used to design procedures or substantive rules
that can serve to enhance the aspiration and inform decisions about the
proper role of the judiciary in lawmaking.
Aspirations, alone and by themselves, don't do much. Their symbolic effect
may do actual harm. Aspirations, to be meaningful, have to be accompanied
by informed efforts aimed at their achievement, IMHO.
Herbert D. Kelleher Centennial Professor of Business Law
University of Texas at Austin
Austin, TX 78712
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