Legal Intellectual Movements in Political Time: Reconstructive Leadership and Transformations of Legal Thought and Discourse

By Simon Zschirnt | Go to book overview

CHAPTER 3
Legal Realism and the New Deal
Regime

INTRODUCTION

“We are all realists now.” While statements to this effect have been “made so frequently that it has become a truism to refer to [them] as…truism[s],” they are nonetheless indicative of the transformation in legal thought that is associated with the emergence of the legal realist movement.1 Challenging the premises of the legal formalism that once permeated legal thought, the legal realist movement has been credited with banishing conceptions of the law as a complete, autonomous, and apolitical system in which judges merely discover rather than make law. Moreover, just as the conservative legal movement’s success in renewing interest in history as a source of constitutional meaning came at a time when the Reagan administration was actively promoting originalism, the success of the legal realist movement in changing the terms of legal and constitutional discourse has been widely associated with Franklin Roosevelt’s efforts to promote the idea of a living Constitution.2 In order to better understand the relationship between the rise of the New Deal political-electoral regime and the realist turn in legal thought, this chapter analyzes the temporal relationship between trends in legal education and scholarship, the Roosevelt administration’s embrace of legal realism, and the growth in the amount of realist scholarship published in elite law reviews. It finds that while this embrace of legal realism contributed to upsurges in realist scholarship, these upsurges built upon a foundation laid by earlier progressive critiques of legal formalism and by social forces that moved legal education and scholarship in the direction advocated by realists.


THE RISE OF THE NEW DEAL REGIME

The New Deal regime represents one of the most thorough and sustained periods of political and electoral dominance enjoyed by any political party in American history, a period that saw the Democratic

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