Law Commons^™

After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of the black population by wealthy white planters, was no longer viable. The urgent question facing both those who sought to reform and those who sought to preserve the “Old South” was: What should local government look like after emancipation? This Article tells the story of the struggle over the …

This essay argues that the legal realists were romantics in the tradition of Ralph Waldo Emerson. It traces this intellectual genealogy through perspective, vocabulary, and rhetorical strategy. In doing this work, it concludes that Hanoch Dagan’s proposal to reconstruct legal realism does not go far enough. He paints a picture of a therapeutic contemporary use of realist thought (the salve), but gives short shrift to the destructive energy at the core of the movement (the scalpel). Recasting the realists as romantics suggests that the lessons that we might take from them for contemporary legal theory are better framed as “rekindling” …