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Tennessee Law Review

Document Type

Article

Abstract

This Article critically reexamines the relationship between Legal Orthodoxy and American Legal Realism. Legal Orthodoxy is a familiar jurisprudential perspective according to which judges do not make law, the law is complete or gapless, and the answers to legal questions are determinable through autonomous inquiry. Legal Orthodoxy featured prominently in the legal thought of Christopher Columbus Langdell and Joseph Henry Beale, and the Realist critique of the Langdellian conception of legal science and education is widely viewed as a decisive refutation of Legal Orthodoxy.

Contrary to this conventional wisdom, I argue that the Realist critique of Langdellianism only justifies a limited and modest departure from Legal Orthodoxy. While this may seem to deal a blow to the Realist agenda for legal science, legal education, and adjudication, I argue that it does not. In fact, the Realists could have justified the major planks of their agenda without challenging most aspects of Legal Orthodoxy. In explaining why this is so, I introduce an outlook I call Epistemic Legal Realism, a form of genuine Legal Realism that denies that judges make law, accepts that the law is complete or gapless, and acknowledges that the answers to all legal questions might be determinable.

The dialectical significance of this conclusion cuts two ways. On the one hand, it offers some support to scholars who want to push legal thought in a more Orthodox direction. On the other hand, it suggests there is fairly little room to oppose the substance of Legal Realism on jurisprudential or legal-philosophical grounds.

Publication Date

2021

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