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This is true and obvious to some extent, but there's some real downsides to the legal realism movement. Legal realism starts off with a correct premise - that judges are flawed and human like the rest of us - but some people go further and come to the conclusion that, thus, no justice is possible and we should just game the system as much as possible.

It's an absolute fact that the American legal code has become more much more bloated, and in my opinion, more haphazard, disorganized, and prone to severe contradiction following legal realism becoming a popular philosophy.

It's immediately obviously true in its premise, but some of the conclusions following from legal realism seem to make the justice system worse.



To be fair, most legal codes become much more bloated over time. You can hardly blame the legal realism movement for this correlation.


This is true, but take a look at this:

http://en.wikipedia.org/wiki/Legal_realism#Essential_beliefs...

Specifically,

"Belief in the importance of interdisciplinary approaches to law. Many of the realists were interested in sociological and anthropological approaches to the study of law. Karl Llewellyn's book The Cheyenne Way is a famous example of this tendency. ... Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests."

This contributes to the current culture, I think, of having 1000 page laws that nobody except lobbyists have actually read. Legal realism says, "There's a problem here, justice isn't perfect" - but then proposes a cure much worse than the disease.

Yes, legal codes do tend to get bloated. But I think legal realism has been a foe, not a friend, of a straightforward and consistent legal code.

That's before even getting into things like fad psychology getting introduced to the courtroom, where psychiatric evaluators use things like the Rorschach test to evaluate people on trial. It's frigging scary that fad social science gets introduced without vetting into the court system, and it turns the common law system from an asset into a liability. But anyways, this is a long conversation - I just wanted to point out that despite legal realism's premises being correct, that doesn't necessarily make all of the conclusions lead to good places.


You're way overloading the idea of legal realism to make your argument, and ignoring things like the influence of critical theory (Marxist/Hegelian dialectic, which is not the same thing as Marxism), public choice theory, the pragmatic movement and so on. Yes, this stuff is very much inside baseball, but I don't think you should rely on Wikipedia to form your opinions about this complex subject.

FWIW I'm inclined towards liberal pragmatism, and biased with an admiration for Richard Posner, probably because I already shared his admiration for JS Mill. Posner's book 'overcoming law' is a good survey of judicial philosophies from the most conservative kinds of formalism/originalism to the most left-wing kinds of identity politics.


Fad social science? Sure, that sucks, but even "forensic science" evidence is often questionable (http://www.innocenceproject.org/understand/Unreliable-Limite...). Even worse, even if the test really does work (e.g. DNA testing), we get abuse of statistics like http://en.wikipedia.org/wiki/Prosecutor%27s_fallacy - "the probability of a random guy having this weight of evidence against him is 1/1 000 000, so this guy must be guilty!" (of course, there are 300 Americans you could convict of any one crime under this standard...)

Let's just say that modern justice systems are not without their faults.


Yea, just because judges are not perfect is no excuse to deliberately game the system.




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