Round and Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship
![handle is hein.journals/hlr95 and id is 1687 raw text is: 'ROUND AND 'ROUND THE BRAMBLE BUSH:
FROM LEGAL REALISM TO CRITICAL LEGAL
SCHOLARSHIP
A widespread perception of both the implausibility of path-
breaking doctrinalism and the scarcity of intellectually ambi-
tious work in legal criticism has called the future of legal
scholarship into question and generated a spate of articles
diagnosing a current malaise in modern legal thought.' Post-
Realist legal theory, it is said, has run its course.2 The
uneasy marriage of formalist and Realist traditions has finally
been prodded to a reluctant self-awareness that is compelling
a reappraisal of basic approaches to legal scholarship.
The discipline's growing self-consciousness is largely attri-
butable to the critical legal scholars, a small group of academ-
ics who emerged as a self-identified school in the late I97o's.3
These scholars locate the genesis of today's crisis in the Realist
legacy and see their task as the continuation of an abandoned
Realist project.4 To inquire into the future of legal scholar-
ship, this Note begins by examining the methodologies asso-
ciated with legal Realism. It then turns to the distinctive
features of the critical legal scholars' methodologies and as-
I See, e.g., Brest, The Fundamental Rights Controversy: The Essential Contradic-
tions of Normative Constitutional Scholarship, 90 YALE L.J. io63 (198i); Fletcher,
Two Modes of Legal Thought, go YALE L.J. 970 (i981); Gordon, Historicism in Legal
Scholarship, go YALE L.J. 1017 (ig8i); Posner, The Present Situation in Legal Schol-
arship, go YALE L.J. 113, 1113-14, 1117 (1981); Schlegel, American Legal Realism
and Empirical Social Science: From the Yale Experience, 28 BUFFALO L. REV. 459
(,979); Stone, From a Language Perspective, go YALE L.J. 1149, 1149 (ig8i); Tushnet,
Legal Scholarship: Its Causes and Cure, go YALE L.J. 1205, 1205 (Ig8i) [hereinafter
cited as Tushnet, Causes and Cure]; Tushnet, Post-Realist Legal Scholarship, 15 J.
Soc'Y PUB. TCHRS. L. 20, 22-23 (198o) [hereinafter cited as Tushnet, Post-Realist
Legal Scholarship].
2 Schlegel, supra note i, at 462.
3 The Conference on Critical Legal Studies was founded in 1977. It attempts to
bring together scholars involved in radical legal studies and includes such notables as
Duncan Kennedy, Morton Horwitz, Karl Klare, Mark Tushnet, and Roberto Unger.
Generalizations about the work of the critical school are difficult. Although this Note
addresses prevalent themes in the most recently published literature, it recognizes that
the school does not have a definitive methodological approach.
4 See, e.g., Freeman, Truth and Mystification in Legal Scholarship, 90 YALE L.J.
1229, 1230, 1233 (I981); Tushnet, Post-Realist Legal Scholarship, supra note i, at 21.
Interestingly, traditional scholars in the 193o's and 1940's warned'that Realist
methodologies were leading legal scholarship into a dead end. See, e.g., Pound, The
Call for a Realist Jurisprudence, 44 HARV. L. REv. 697 (193). Realism has a
peculiarly ambivalent status in traditional scholarship: Realism is dead; we are all
realists now. W. TW.VINING, KARL LLEWELLYN AND THE REALIST MOVEMENT 382
06973).
1669](ViewImageLocal?handle=hein.journals/hlr95&div=80&collection=&method=preview&ext=.png&size=3)
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Round and Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship
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