John Henry Schlegel, American Legal Realism and Empirical Social Science. Chapel Hill: University of North Carolina Press, 1995. Pp. xii, 418. $55.00
John Henry Schlegel has written a book that attempts to explain why law has not followed the path of other academic disciplines in adopting a natural-science model of empirical inquiry. He convincingly argues that by the time legal academics confronted empirical science in the guise of Legal Realism during the 1920's, American legal education had already undergone a kind of scientific revolution: the adoption in the late nineteenth century of the Langdellian caselaw method, a deductive approach that saw the law library as a sufficient "field" for legal research. This intellectual practice, and the professional identity that grew up around it, has made empirical research a "square wheel" in American legal education.
Schlegel offers this contextual explanation for the marginality of Realism as "an invitation to open a discussion about what intellectual history... is and has become as this century closes" (260). Following Realism's own move from legal texts to social contexts, Schlegel insists that "rather than a history of ideas, intellectual history needs to be the history of intellectuals, people who do things with ideas" (5). In the spirit of this invitation, my Review focuses more on Schlegel's approach to Realism than on his account of it. Schlegel dismisses the history of ideas as "an essentially empty exercise," and calls on historians to give up "the dance of reason" in order to embrace "the whole dance of life" (4, 261). Schlegel's book, however, reveals this move from text to context to be nothing more than the dance of history, an essentially empty exercise in causal explanation. In this Essay, I examine Schlegel's book not only as an account of American Legal Realism, but also as a symptom of a fundamental structural incoherence in the conception of intellectual history as an academic discipline.
"The Dance of History,"
Yale Journal of Law & the Humanities: Vol. 8
, Article 6.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol8/iss2/6