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Schools of Legal Thought:
Legal scholars often refer of schools of legal thought, such as the legal formalists, the legal realists, the legal process school, and the like. I have often thought that, as a general matter, there is something to these schools -- very real differences in terms of how adherents to these schools thought about the law. At the same time, I am often struck by the nagging sense that many descriptions of these differences are exagerrated. When I go back and actually read the works of the formalists, or the realists, or the legal process school, I often end up with the impression that their work is much more sophisticated and less one-dimensional than many current critiques would suggest. It seems to me that the differences are more differences of degree than differences in kind.

  I wonder, do others share that impression? I realize that this is kind of an abstract question, but it's something I think about from time to time and I thought I would put it out there for comment.
Anon Y. Mouse:
I must confess having had similar thoughts in the past. It's difficult to find a text usually designated as "formalist" that doesn't have passages that could be classified in the legal process school, etc. My personal experience has been that such labels are generally used as shorthand to dismiss or refute an argument without really engaging it.
10.9.2006 6:04pm
Anderson (mail) (www):
But isn't this true in *every* discipline?

"Schools" are a heuristic, educational device to be discarded when one learns the details. It's a red flag when you find someone who's supposedy an expert in a field, but who talks about this or that "school" as if it were a real entity.

For that matter, it's a good idea to presume accounts of what any given thinker believes are usually wrong. I base this on my brief acquaintance with philosophy as a discipline. What I call the "received version" of Plato or Nietzsche, what you'd find in a history-of-philosophy survey or an general encyclopedia entry, is unlikely to bear much relation to what they actually wrote. I would suspect that legal studies are similar in that respect.
10.9.2006 6:25pm
Duffy Pratt (mail):
Pigeonholing is an important first step to take before ridiculing and/or dismissing an entire body of work.

People who do this are just scholastics, and deserve to be utterly ignored ;)
10.9.2006 6:50pm
Pub Editor (mail):
Anderson is correct that this is not a phenomenon seen solely in the law. Especially when people are approaching a problem from a common background (same constitutional framework or same religious tradition, for example), they will reach the same conclusion in the majority of cases. However, when we are advocating a specific position, opposing a (slightly) different interpretation, we stress and amplify the differences between the two positions. In our passion and fervor to convince others to join our particular point of view, we exaggerate the differences and (alleged) deficiencies in our opponent's way of thinking, even though both "schools of thought" will reach the same conclusion in 90% of cases. We argue ferociously at the fringes; the core we ignore, because it is not at dispute.

One of my professors the other day said that Utilitarians and Rawlsians will reach the same conclusion 90% of the time. Though I don't have statistics on hand, I believe most appellate panels in most cases are unanimous. Despite differences in philosophy, most U.S. judges (working from the same constitutional and common law background) will reach the same conclusion in most cases. Since beginning law school, one thing that has surprised me is how often even the U.S. Supreme Court reaches unanimous decisions.
10.9.2006 7:28pm
Randy R. (mail):
I agree with the comments above, but there is always the exception. Occasionally, one will find a judge or whatever who subscribes to a 'school' of thought and thinks that he -- and he alone against the world -- has figured out the big key to deciding even the toughest cases. They treat the school as though it was just some sort of complex math -- you plug in the variables, ie, the facts before you, churn them through the school of thought, and out comes an answer. No thinking required!

Naturally, the answer almost always is the answer they they like! I have yet to see any adherent of any school apply his principles and come out with a result that is contrary to what he believes *should* be the result.

Don't ask me for specific instance -- I can't think of any right now. But I know that that appears to happen at least once in a while.

But perhaps someone else can test this out for me: has any adherent to the Chicago school of law and economics ever had a result that ended with a 'little guy' plaintiff winning against a huge multi-national corporation?
10.9.2006 8:07pm
Mike BUSL07 (mail) (www):
As a student, I definitely agree. When learning these theoretical models, we are definitely given extreme examples, as those best illustrate the differences. Actually, looking into my Admin notes, I have a ":)" next to "Public Interest," and a ":(" next to "Public Choice." But that's because I'm lame.

In practice, the application is apparently much more complex.
10.9.2006 8:15pm
marghlar:
But perhaps someone else can test this out for me: has any adherent to the Chicago school of law and economics ever had a result that ended with a 'little guy' plaintiff winning against a huge multi-national corporation?

Randy, check out http://www.projectposner.org/case/1993/988F2d729/ for starters. Judge Posner reverses a verdict for defendants in a product liability case. It took me just a few minutes to find it. Perhaps ideology dictates case results to a lesser extent then you suspect. Or perhaps members of the Law &Econ movement are not uniformly pro-business at the expense of all other concerns. After all, if they were, they'd be pretty lousy economists.
10.9.2006 9:34pm
anonVCfan:
I tend to agree with Anderson. When I see references to "schools of thought," they usually refer to distilling a general way of thinking about things to a few sentences: "the originalist school of thought holds that laws mean what their drafters originally intended them to mean," or "the retributive school of thought holds that criminal punishment should be calculated in accordance with moral culpability and what the criminal deserves," or something like that. A "school" of thought has one or 2 basic tenets/underlying assumptions, and lots of people out there who accept the basic assumptions and debate endlessly about what the implications of those assumptions are, and occasionally debate people from other schools about whose underlying assumptions are better.

I don't think that "schools" of thought are very uniform once one gets very past the really basic assumptions.
10.9.2006 10:29pm
MJG (mail):
It's been awhile since I read the Bramble Bush, but I remember Llewellyn (who obviously has his own label for legal "school of thought") remarking how when he would go back to read the old formalists he didn't find them quite as formal as they had been made out to be. I was never much one for these kinds of debates, but wasn't what became the "legal realist" "school of thought" originally intended to not be so much of a school in the first place, but a rejection of those kinds of ideologies? It has since become one though, I suppose.
10.9.2006 10:34pm
go vols (mail):
I think another answer has to do with the nature of pedagogy. As a teacher, you have a boatload of things to teach to students. Exploring the nuance of every judge or author autor who is normally associated with these schools is not something that your limited time will lend itself to, nor is it something that they're likely to remember even if you do get beyond the labels. If we didn't make shorthand, sometimes inaccurate labels for things (or models, if you like), it'd be difficult to teach or converse with anyone. As such, you give people basic categories with some caveats and hope for the best.

Admission: I teach college, so I'm not attacking anyone here.
10.9.2006 10:35pm
Hans Gruber:
"I have yet to see any adherent of any school apply his principles and come out with a result that is contrary to what he believes *should* be the result."

You're not looking very hard.
10.9.2006 10:38pm
Some2L:
My ConLaw professor brings up the school of "framer's intent" about every other class in order to bash it and Scalia and Talk Radio, etc. It's his regular strawman. He mislabels and mischaracterizes orginalism in his effort make us into liberals. Too bad for him that it doesn't work.
10.9.2006 10:52pm
Hoya:
The labels are pretty useful, and even theoretically important. What these 'school' labels point to, I think, are the ideas that organize the overall system of thought -- even if a number of theses that are defended by other folks play a big role in their views.

Look: a natural law theorist and legal positivist can agree on a lot of stuff (about the essential sociality of law, on law's claim to authority, etc.) But the organizing idea of each view is different. And if your theory does not have a single organizing idea, or a small set of organizing ideas, you don't have a theory, you have a set of disconnected reflections.
10.9.2006 11:27pm
OrinKerr:
Some2L,

Originalism is not a "school of legal thought," it's a theory of constitutional interpretation.
10.9.2006 11:30pm
Tom Tildrum:
Orin, I wonder if the phenomenon that you describe comes about because the body of law to which all of the theoreticians are having to apply their ideas has generally been made in "the real world" by practitioners and judges (aka "C students") who are not that well-versed or even interested in theory of any sort.
10.10.2006 1:01am
anonVCfan:
Maybe I (and some 2L) are mistaking the sense in which lay people refer to schools of thought and the sense in which legal scholars refer to it. Sorry not to be of much help.
10.10.2006 9:28am
Laurent:
Dear All,
As a french student (economics) interested in contemporary legal thought (through its links with economics), my reading led to Neil Duxbury's "Patterns of American Jurisprudence". This very comprehensive history of legal scholarship in the US shows that it is no matter of opposition or mere reaction between "schools" but rather "a social construction of legal theories that respond to each other in a complex way".

Another explications of this tough distinction between subtles schools could be:
- An institutional signal for scholars and a way to constructs barriers of power.
- As usual, a rational reconstruction by historians of thought who sketch an history on the base of what the disciplines is today.

Best wishes,
a french student in history of economic thought
10.10.2006 9:45am