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The emergence of legal realism in the early twentieth century is widely seen as a pivotal event in the U.S. legal tradition. A legal theorist recently attested to "the enormous influence Legal Realism has exercised upon American law and legal education over the last sixty years."1 Above all else, legal realism is credited with bringing about a revolutionary shift in views about judging in the American legal tradition. The standard account, as put by a legal historian, is this:
Formalist judges of the 1895-1937 period assumed that law was objective, unchanging, extrinsic to the social climate, and, above all, different from and superior to politics. . . .
The Legal Realists of the 1920s and '30s, tutored by Holmes, Pound, and Cardozo, devastated these assumptions .... They sought to weaken, if not dissolve, the law-politics dichotomy, by showing that the act of judging was not impersonal or mechanistic, but rather was necessarily infected by the judges' personal values.2
This conventional narrative about the Realists, told many times over, is now virtually taken for granted. A recent book by political scientists, for example, asserted:
Until the twentieth century, most lawyers and scholars believed that judging was a mechanistic enterprise in which judges applied the law and rendered decisions without recourse to their own ideological or policy preferences .... In the 1920s, however, a group of jurists and legal philosophers, known collectively as "legal realists," recognized that judicial discretion was quite broad and that often the law did not mandate a particular result.3
A recent article on judging reiterated the point:
According to the formalists, judges apply the governing law to the facts of a case in a logical, mechanical, and deliberative way. . . . For the realists [on the other hand], the judge "decides by feeling, and not by judgment; by 'hunching' and not by ratiocination" and later uses deliberative faculties "not only to justify that intuition to himself, but to make it pass muster."4
Much of this conventional account is misleading. Legal realism is largely misunderstood because the work of the Realists is interpreted within a false set of historical and theoretical assumptions. The aim of this exploration is not only to produce a more accurate account of the Realists, but more so to...