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This chapter challenges two widespread views about the relationship between the jurisprudential theories known as ‘Legal Realism’ and ‘Legal Positivism’. The first is that the two doctrines are essentially incompatible or opposed at the philosophical or conceptual level. The second is that Legal Realism is a jurisprudential joke, a tissue of philosophical confusions — confusions that the 20th century's leading Positivist, H. L. A. Hart, exposed more than thirty years ago in the famous Chapter VII (‘Formalism and Rule-Skepticism’) of The Concept of Law. The two views are connected in the following way: Hart, on this picture, sealed the tomb of Realism as a serious legal theory, and in so doing gave credence to the idea that Realism and Positivism were opposed doctrines. The chapter contests both these views through a careful re-examination of Hart's influential critique.

This chapter argues that the clash between Protestant idealism and secular or scientific pragmatism that was evident during the American culture wars had a direct counterpart in American jurisprudence. Protestant idealism corresponded closely to what has been variously labeled the “classical orthodoxy” or “Langdellian formalism.” Scientific pragmatism more or less corresponded to a movement that called itself “Sociological Jurisprudence” and a later movement known as “Legal Realism.” The struggle between classical legal orthodoxy on the one hand and Sociological Jurisprudence and Legal Realism on the other profoundly shaped the mores of judicial review and helped produce the modern standing doctrine.

This introductory chapter begins with a discussion of how Realism was held in contempt, if noticed at all, by philosophers, even those with a substantial interest in law. It then considers developments in legal philosophy over the last fifty years, and describes how the essays in this volume reflect one philosopher's and legal scholar's attempt to make sense of what seems to be so compelling about American Legal Realism and, in the process, figure out where that jurisprudence fits into a naturalistic philosophy. An overview of the subsequent chapters is presented.

This chapter ventures beyond most writing on Legal Realism by focusing on its link to “institutionalism,” a movement of renegade American economists who believed neoclassical economics’ stripped down conception of the “rational actor” undermined economics’ usefulness as a policy tool. Rather, economics should accommodate much more evolutionary and behavioral conceptions of human motivation. The institutionalists believed that people interacted in a wide variety of settings, or “institutions,” and that the operating rules of these institutions varied from one to another. As a result, policies that might fix failures in one institution would not work in others. They also believed that markets were feeble instruments for managing economic resources and that more state intervention was required. Although institutionalism was rejected by mainstream economists in the 1920s, the Legal Realists carried its mantle through the 1960s. The result for some time was a separation of dominant legal policy from mainstream economic doctrine.

While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this chapter argues that it is instructive to see Langdell’s beliefs as homologous with F&F conceptions, to see some parallels between Holmes’ thought and H&B theory, and to see MM theory and “fact-type” Realism as related. Langdell’s arguments for base level rules resonates in the F&F idea that cognition is lexical; more subtly, the principles that he believes can be deduced by careful study of existing case law are not natural or intuitive but otherwise strongly resemble the basic cognitive tools in the F&F adaptive toolbox. Holmes believed that our problem-solving “intuitions” developed historically and collectively to a greater extent than they derived from individually adaptive cognitive algorithms. But like H&B theorists who describe the relationship between System One and System Two thinking, Holmes believed that such intuitions exist to meet functional ends, and that following them will generally do so, but that we have the capacity to override them.

This chapter claims that a structurally pluralist account of private law complies with both aspects of the rule of law: the requirement that law be capable of guidance, and the prescription that law not confer unconstrained power on officials. Properly understood, private law pluralism, which is inspired by American Legal Realism, supports relatively stable and internally coherent—albeit properly narrow—doctrinal categories. People’s behaviour can indeed be guided because private law institutions are governed by precise rules and informative standards that derive from the regulative principles of these institutions. Both legislation and adjudication shape these institutions because courts are equally participatory and accountable as the legislature. Similarly, while the plurality of values presents a challenge, there is no basis to assume that judicial power is not constrained by the requirement of normative contextual enquiry epitomizing common law adjudication.

By the close of World War II, Legal Realism had become the dominant jurisprudential perspective in the American legal academy. But developments connected to the use of totalitarian regimes of the left and right put pressure on the apparent claim of realists that “law” was simply the decisions of officials holding power. In response to that concern, and to the “antidemocratic” dimensions of judicial review of major institutions by unelected judges, “process theory,” featuring emphasis on institutional constraints and the obligation of judges to describe cases on legal principles transcending results in cases, became entrenched as a jurisprudential perspective. But then, between the 1970s and the close of the century, process theory lost its resonance. The chapter surveys those developments.

This chapter explains the starting point that recent proliferation in the UK of individual employment and equality rights has not provided working people with effective means to ameliorate their position and yet has legitimated existing power structures. This state of affairs evokes theorizing of law as innately dual, for example by Thompson and Crenshaw, and has created ideal conditions for exploration of the precise means by which law produces its contradictory effects. The primary research that the book relates used behavioural conflict at work as a case study, drawing methodological inspiration from old and new versions of Legal Realism to combine systematic analysis of higher court judgments with qualitative interviewing of senior managers and lawyers. The chapter summarizes the book’s findings, the wider theorizing of the relationship between law and working life that resulted, and consequent suggestions for change.

Many populist governments have engaged in programs of judicial reform, sometimes described as court-packing. After laying out the reasons the people have for electing populist governments, including, importantly, a desire to see ambitious policy reforms adopted, the chapter describes the political logic of constitutional reform, including court reforms. That logic is that existing veto gates can obstruct or slow down the implementation of the policy reforms the people voted for, thereby interfering with democratic choices that constitutionalism freely permits. Removing some of the veto gates enables majority rule, and sometimes replaces them with alternatives that are themselves consistent with thin constitutionalism. Specifically with respect to the courts, some reforms adjust the balance between judicial independence and judicial accountability in ways that remain within the bounds of thin constitutionalism. The chapter introduces the concept of “judicial time” to explain why politicians sometimes are interested in departing from the regular modes of affecting the composition of constitutional courts (such as appointments when vacancies occur). It distinguishes as well between reforms that are permissible fine-tuning and those that amount to “smashing” the courts. The chapter includes case studies of judicial reform proposals in India and Israel to illustrate that distinction. Both reforms failed, for different reasons; the chapter argues that in both nations the reforms were more like fine-tuning even though they probably were motivated by anti-court sentiment.

This chapter extends the consideration of the promises and perils of Indigenous engagements with non-Native officials in two ways, one analytically and one substantially. For the former, it considers how misunderstanding of Tribal norms, knowledge, and relations informed a recent line-item amendment to the Indian Tribal Governmental Tax Status Act, a provision of the U.S. tax code, hindering Native Nation economic development projects. An analysis of the amendment’s legislative history and actions taken by its proponents to influence Internal Revenue Service rulings interpreting it reveals how legal texts can be influenced by the misunderstandings of indigenous juris-dictions that underwrite them. For the latter, this chapter turns to a classic theory of sociolegal scholarship and its appropriation of Native American norms, knowledge, and relations - namely the work of Karl Llewellyn on the Uniform Commercial Code, which owes a debt to earlier work he did on the juris-dictions of the Northern Cheyenne Nation. Though it has no direct bearing on the tax provision in question, it is offered here to foreground how an analytic approach influenced by Indigenous juris-diction offers a unique angle from which to see how the amendment works to misunderstand contemporary Tribal Nations and their sovereignty.

What place did Harvard College have in the modern University, with its expansive central administration, research-driven faculty, ambitious and high-powered professional schools? A much more important one than this litany of potential threats might suggest. The College remained the most conspicuous and prestigious part of the University. It produced the most generous donors; it outclassed its rivals in attracting the most sought-after students; it exemplified Harvard in the public mind. And it shared in the worldly ambience of the late-twentieth-century University. For decades, Harvard College admissions was a battleground over who would be accepted and on what grounds access would be granted. The admission of Jews was a touchstone issue in the conflict between the Brahmin and meritocratic impulses from the 1920s to the 1950s. Then another problem came to the fore: how to choose a freshman class from a swelling number of qualified applicants. As selection became ever more complex and arcane, the sheer size and quality of the applicant pool enabled the dean of admissions and his staff, rather than the faculty, to define the terms of entry. The result was that classes were crafted to be outstanding in more than purely academic-intellectual terms. Intellectual superstars were a small group of near-certain admits. After that, a solid level of academic ability set an admissions floor, above which character, extracurricular activities, artistic or athletic talent, “legacy” status, and geographical diversity figured in the admissions gene pool. After the 1960s, diversity came to embrace race and gender. Chase Peterson, who was dean of admissions during the tumultuous years from 1967 to 1972, thought that during his time the criteria for selection broadened to include tenacity, perseverance, having learned something deeply and well, social generosity, intellectual openness, and strength of character. A statement on admissions desiderata in the 1990s included “honesty, fairness, compassion, altruism, leadership, and initiative” and stressed: “We place great value in a candidate’s capacity to move beyond the limits of personal achievement to involvement in the life of the community at large.” One of Dean of Admissions Wilbur Bender’s 1950s ideal admits, a “Scandinavian farm boy who skates beautifully,” had better have headed his local skating club or taught skating to inner-city youth if he hoped to get into Harvard at the century’s end.

Harvard’s evolution from a Brahmin to a meritocratic university involved alterations in its governance as well as the makeup of its students and faculty. The cozy, we-happy-few atmosphere of the past began to give way to more professional administration. As a chemist accustomed to overseeing a laboratory and working systematically on problems, Conant rejected Eliot’s and Lowell’s style of running the University “largely ‘under their hats.’ ” His close associate Calvert Smith recalled that he devoted the pre-World War II years to seeking “a modus operandi adaptable to the present size and complexity of the institution, which at the same time still fitted in with the traditional precedents.” But the embedded culture of a venerable, decentralized university made change difficult. Looking back in 1952, Conant concluded that administration at Harvard was not very different from what it had been in Lowell’s day. He saw the central administration “as a sort of holding company responsible for the activities of some 20-odd operating companies.” There were occasional ineffective attempts to draw up a Harvard organizational chart, but as Corporation Secretary David Bailey conceded, “the difficulties of setting down complex relationships in black and white have always prevented their being cast in final form.” The University, he thought, “is suffering from acute decentralization.” For all his commitment to institutional change, Conant relied as did his predecessors on graduates of the College with strong institutional loyalties. When he assumed office in 1933, he brought in Jerome Greene to be both his and the Corporation’s secretary. Until his retirement in 1943, this consummate civil servant was Conant’s closest counselor on alumni and other matters. Greene’s successor was A. Calvert Smith, a classmate of Conant. Smith had strong public relations skills, honed by several decades in the wilds of New York’s investment and banking world, not unlike Greene’s background. Soon after he came into office Conant made John W. Lowes, the son of Higginson Professor of English John Livingston Lowes, his financial vice president. But it was not easy to work this new position into the existing Harvard structure, especially with power-seeking Treasurer William Claflin on the scene. When Lowes left for military service in September 1941, Conant told him his position would not exist when he returned.

The triumph of meritocracy at Harvard had social as well as academic and intellectual consequences. It changed the ethnocultural and class structures of both the faculty and the student body. Jews in particular became a substantial, accepted part of the Harvard scene. And in more complex and ambivalent ways, Catholics, women, and African Americans gained in numbers, impact, and visibility. After World War II, meritocratic principles substantially overrode anti- Semitism in the admission of students and the appointment and promotion of faculty. An inquiry into the religious identification of Harvard College students in the mid-1950s revealed that 52 percent identified themselves as Protestants (about 15 percent of these Episcopalian), 12 percent as Catholics, 15 percent as Jews; 20 percent claimed no religious affiliation. Residual discrimination against Jewish applicants arguably lurked within an admissions policy that sought a Harvard class as diverse as possible in geographical origin, social background, and nonacademic talents. But the 1956 admission rate to Harvard from strongly Jewish feeder schools was (with the glaring exceptions of New York City’s Stuyvesant and Erasmus high schools) not too far below the overall Harvard acceptance rate of 43.3 percent of applicants. (Though it may be assumed that the academic record of these candidates was well above the norm.) After World War II, anti-Catholicism like anti-Semitism retreated to the margins of respectability. The religiously inclined Pusey had an ecumenical sympathy for Catholics, substantially reciprocated. And Catholics themselves became more ready to send their sons to Harvard. JFK’s election to the presidency in particular gave the University a cachet among them that all but obliterated the suspicion-ridden past. Catholic undergraduates, substantially greater in numbers than in the prewar years, felt more at home by the 1950s. In 1960 a Catholic Student Center opened adjacent to the campus, with Cardinal Cushing’s encouragement and assistance. The Current, a Catholic student magazine, concluded in the spring of 1963: “we are convinced that Catholics belong at Harvard.”