The Missing Normative Dimension in Brian Leiter's "Reconstructed" Legal Realism

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps.

This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a conclusion: it makes no sense to give normative advice. In the present Article, I have continued to use these terms as Leiter uses them so as not to confuse the analysis and because in the context of this Article they prove adequate.