Nyquist — Volume 65, Issue 4

The conventional history of American legal thought conflates the Progressive movement and Legal Realism, locating their shared critique of Classical Legal Thought in Lochner v. New York and treating realism as merely a continuation of progressive formalism-critique. Nyquist argues this account is seriously flawed and has generated endless confusion about realism's intellectual foundations. The article divides the early twentieth century into two eras: a Progressive Era (1905-1923) and a Realist Era (1923-1941), each with distinct legal thought. During the Realist Era, balancing became the default method of legal reasoning in Western legal systems, yet scholars remain confused about its genealogy. Nyquist traces balancing through works by Roscoe Pound, Benjamin Cardozo, Underhill Moore, and Lon Fuller, revealing two competing conceptions: a teleological view of balancing (dominant during the Progressive Era) and a conflicting considerations approach (characteristic of Realist Era cognitive relativism). The article contends that realists' primary target was progressives, not formalists alone. By distinguishing Progressive and Realist eras, Nyquist exposes how the false conflation of balancing concepts—one teleological, one relativistic—creates the misleading hope that balancing provides a determinate method for resolving legal disputes.

Topics: Legal Theory · Legal History

Keywords: Legal Realism · Lochner v. New York · balancing · Classical Legal Thought · Roscoe Pound · Lon Fuller · cognitive relativism