Clarifying the Normative Dimension of Legal Realism: The Example of Holmes's The Path of the Law

In a recently published article, I examined the Legal Realism found in Leon Green's and Karl Llewellyn's tort scholarship. Brian Leiter had previously presented an insightful "philosophical reconstruction" of Legal Realism. In articulating what he sees as the descriptive and normative aspects of Legal Realism, Leiter drew most of his examples from the field of commercial law, which was the main focus of Llewellyn's scholarship. In this context he wrote that most Legal Realists made a descriptive claim about judicial decisions or, more specifically, decisions of appellate courts.

Stated in its most succinct form, this descriptive claim was that judicial decisions fall into discernible patterns, correlated with the underlying factual scenarios of disputes (or "situation types"), as opposed to formal legal rules. My examination of Green's and Llewellyn's tort scholarship confirmed this thesis.