R3UE and Amercian Legal Theory(ies)

For those who didn't get enough of the Restatement (Third) Restitution and Unjust Enrichment from a working draft of my article on SSRN (abstract here), or earlier blog posts here and here, take a look at Lionel Smith's piece, Legal Epistemology in the Restatement (3d) of Restitution and Unjust Enrichment (abstract here). Smith, who teaches at McGill University in Montreal, has written an article that is more analytical than mine but it's worth a read by those interested in contemporary legal theory.

The analytical fulcrum of Smith's piece is the contemporary American distinction between legal doctrine and legal "realism" of one flavor or the other. Legal doctrine generally holds in Smith's words that "the nature and role of private law is to consecrate, in a juridical and thus publicly enforceable form, the fundamental elements of interpersonal morality." "Consecrate" may be a bit of an overstatement but in brief those who write in the realm of legal doctrine take the perspective that the law as enunciated is to be taken seriously, as having within it the resources for its comprehension. Writers in the field of doctrine don't deny that the law frequently fails but if so the law fails on its own terms; it simply does not measure up in practice to its professed goals.

"Legal realists," on the other hand, think the work of judges is a smokescreen of some kind. Most contemporary legal realists believe that what the law really is (or at least what it should be) about is promoting economic efficiency. Yet there are other large contingents in the realist tradition who see the law as a cover for misogynistic, anti-gay, or other sorts of repressive social regimes. Legal realists get published in the leading law journals. Legal doctrinalists do not.

My piece on the R3RUE linked above is an example of legal doctrine (which is why I'm pleased about the upcoming publication of my final version in the well-regarded Pepperdine Law Review). Smith's is not an example of legal realism; instead, he compares the competing strands of doctrine and "realism" as they come to expression in the R3RUE.

The story of American legal theory since the turn of the 20th century has been the gradual ascendancy of legal realism and the eclipse of legal doctrine, which also explains the lessening usefulness of legal scholarship. Judges and lawyers, after all, need doctrine more than hyper-politicized critique, even if from a neo-classical economic perspective. Which, come to think of it, might also help explain the increasing politicization of legal decision-making, especially on the Supreme Court.