The Scalpel and the Salve: Rekindling Romantic Realism

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” than “reconstruction.