I wonder if "supposing the dominance" of realist thought in academia runs the risks of overvaluing the quality of realist discussion law students gain exposure to presently and, by doing so, undervaluing the the potential of realist schooling to effect functionalist judging. I write from one semester's experience and am hesitant to raise the following point because of this lack of exposure.

It is possible that not all approaches classified under the realist header are equally valuable in terms of cultivating functionalist justices and that the realism that dominates academia is sub-optimally suited toward this end. The dangers of supposing realism's dominance, then, are to treat existing forms as though they cannot be further improved or to look only to causes outside of existing realist academia for causes of functionalist judging's failure to take hold.

The limited realist exposure I received last and am gaining this semester differ significantly. Only in passing did our Civil Procedure class acknowledge the degree of subjectivity that factored into justice's constructions of the "government's interest" under the balancing tests of Matthews and Goldberg. The discussion did not progress beyond this observation. Some likely took away from this conversation the idea that balancing tests and the discussion of consequences are exercises in futility subject only to the whims of the bench.

We can chalk the above experience up to time-constraints, to the idea that first-year students can only engage in realist critique after immersion in transcendental nonsense, and with the hope that students will find the Moglens in their later years but with the understanding that most students will self-select into such courses. If the latter is true and functionalist course offerings are both limited and secluded, the end result would likely be a bifurcated educational experience where students can self-select away from or into the study of transcendental nonsense. Does this arrangement perpetuate the preexisting divisions we observe daily between functionalist and non-functionalist judges? If so, is the failure of functionalist judging to take greater hold still surprising?

-- JasonLissy - 29 Jan 2009