The Missing Normative Dimension in Brian Leiter\u27s 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

Clarifying the Normative Dimension of Legal Realism: The Example of Holmes\u27s The Path of the Law

In a recently published article, I examined the Legal Realism found in Leon Green\u27s and Karl Llewellyn\u27s 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\u27s 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\u27s and Llewellyn\u27s tort scholarship confirmed this thesis

Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy does—and should—shape their lawmaking. If this formulation sounds familiar, it is because of its similarity to Judge Richard Posner’s legal pragmatism, which Posner himself has linked to Holmes and Cardozo. Posner’s legal pragmatist believes that at times “judges in our system are legislators as well as adjudicators” and that policy judgments are at the core of their lawmaking. A particular focus of this Article will be judicial lawmaking in the common law and, more specifically, tort law. This focus reveals that we can see in the works of these great judges and scholars the origins of the enterprise liability doctrines adopted by courts in recent decades, in particular, the doctrine of strict products liability and the policy-based expansion of liability within the negligence system

Clarifying Duty: California\u27s No-Duty-for-Sports Regime

In this Article, we hope to untangle the confused no-duty-for-sports rules the court has created over the past decade and a half. We will argue that much of this confusion stems from the court\u27s carrying over terminology and concepts of the traditional assumption of the risk defense. In Part II, we set forth the law of assumption of the risk as it stood prior to the court\u27s decision in Knight. Parts III through V then carefully trace the adoption and elaboration of the no-duty-for-sports doctrine. These Parts attempt to expose the roots of the confusion that surround this doctrine. In Part VI, we suggest ways in which the court could clarify duty analysis in this area while retaining the basic analytic and policy framework laid out in Knight. In Part VII, the conclusion, we briefly review the steps the court could take to achieve this goal

An Enterprise (No-Fault) Liability Suitable for Judicial Adoption - With a Draft Judicial Opinion

In this Article, the authors propose that courts recognize an enterprise liability applicable to persons injured on the premises of supermarkets. In contrast to strict products liability, victim compensation under their proposal would not turn on whether the supermarket\u27s premises could be characterized as dangerously defective. Instead, the proposed doctrine would impose a strict enterprise liability for personal injuries arising out of the use of the supermarket\u27s premises by entrants on those premises. The resulting doctrine would avoid the intractable - and litigation producing - defect problem, while holding down costs - and litigation - by limiting recoverable damages

Strict Tort Liability of Landlords: Becker v. IRM Corp. in Context

This Article examines the California Supreme Court\u27s decision in Becker v. IRM Corp., in which it held that landlords are subject to strict tort liability. The authors argue that this holding is in stark contrast to the traditional rules that granted landlords a broad immunity, even from negligence liability, when tenants or others were injured by defective conditions on the leased premises. The authors survey the law of landlord liability and examine the issues raised by the Becker decision. The authors suggest that the Becker decision is not an unprecedented step into uncharted territory, but rather the culmination of more than a decade of landlord strict liability decisions in California and the logical consequence of broader trends in the common law of tort, property and contract