Understanding Legal Realism

Tamanaha, Brian Ζ.

doi:10.2139/ssrn.1127178

Cited by 24 publications

(17 citation statements)

References 36 publications

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“…16 For a useful review of the evolution of thought about how judges make decisions see Fiscus (1991). On the history of Legal Realism, see Tamanaha (2009).…”

Section: Controversy #2: Does Support For the Supreme Court Reflect Tmentioning

confidence: 99%

The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto

Gibson

Nelson²

2014

Annu. Rev. Law. Soc. Sci.

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erhaps no concept in the social sciences has received as much renewed attention as the nearly age-old concept "legitimacy." 1 Scholars of many different intellectual persuasions are being attracted to the concept, even including conventional rational choice researchers (e.g., Vanberg 2001). , and interest in legitimacy extends across several disciplines within the social sciences (e.g., Jost and Major 2001; Tyler 2006). While legitimacy is a concept that can be associated with many different objects (e.g., nations, governments as a whole, cultural values 2), our focus here is on institutional legitimacy, and in particular on the institutional legitimacy of the U.S. Supreme Court. Scholarship on various aspects of the Court's legitimacy has exploded in the past decade or so, with many new studies contributing to the wellestablished conventional wisdom-even if many new studies also challenge established dogma, raising a host of significant empirical and theoretical issues. Legitimacy is a concept particularly relevant to courts, especially non-elected courts like the U.S. Supreme Court. In a democratic polity, accountability and the consent of the governed form the most common source of institutional legitimacy. For many political institutions, legitimacy arises from the social contract.

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“…16 For a useful review of the evolution of thought about how judges make decisions see Fiscus (1991). On the history of Legal Realism, see Tamanaha (2009).…”

Section: Controversy #2: Does Support For the Supreme Court Reflect Tmentioning

confidence: 99%

The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto

Gibson

Nelson²

2014

Annu. Rev. Law. Soc. Sci.

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“… 2 For a useful review of the evolution of thought about how judges make decisions, see Fiscus (1991). On the history of legal realism, see Tamanaha (2009). …”

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confidence: 99%

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Gibson¹,

Caldeira²

2011

Law Soc Rev

128

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Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.

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“…2 For a useful review of the evolution of thought about how judges make decisions, see Fiscus (1991). On the history of legal realism, see Tamanaha (2009). 3 Legal realism (and the attitudinal model of Segal and Spaeth) is of course a simplified model of judicial decisionmaking, with most scholars recognizing that judging at the level of the Supreme Court involves a complicated blend of legal, policy, and ideological considerations.…”

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confidence: 99%