Two Problems for Legal Realists

I. The argument for legal realism generates its own problems

II. The legal realist challenge

a. Rule-skepticism

i. A rule of law cannot contain its applications

ii. Any set of prior applications admits an indefinite number of possible rules

b. Fact-skepticism

ii. The facts of a case are the subjective narrative output of numerous actors

c. The law is indeterminate in outcome and the constraints of the Rule of Law on judges are fictions

III. The realist approach

a. A purely logical analysis of the rule is insufficient to justify a legal decision

b. Judges should embrace the political aspect of legal decisions

IV. Two problems for legal realism

a. The epistemological problem

i. What grounds the claim that experience is primary?

ii. Two theories of meaning

b. The pragmatic problem

i. Does legal realism sell out the poor?