#Resistance, with Candor

Sanford Levinson & Mark A. Graber, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, Chap. L. Rev. (forthcoming), available at SSRN. Paul Horwitz Are we all still “Legal Realists now?” So it is often assumed. But there are reasons to wonder. Today, it seems, many legal scholars are private Legal Realists only. Their public writing—whether scholarship, public commentary, or legal advocacy—shows few traces of Realism. They are writing to persuade judges or the general public. That counsels against admitting their arguments are malleable and have as much to do with external factors as the “internal” practice of law. To persuade this audience without causing resistance or cynicism, they cannot put all their cards on the table. Is that concealment Legal Realism, or something else—perhaps bad faith? This question is especially relevant in the Age of Trump. Many legal…

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