Prepare answers to all four questions
The bad man thesis: The Path of the Law, 459–463.
1. You make a contract to sell Blackacre to Henry for $200,000. Then, before you transfer title to Blackacre to Henry, Eleanor offers you $250,000. So far, Henry has paid you nothing. What does the law consider is the better thing for you to do – to transfer Blackacre to Henry, or to break the contract and sell to Eleanor? How would Holmes answer this question?
Other Realism
2. A sign on the highway indicates that the speed limit is 100 kilometres per hour. Everyone who regularly drives on the road knows that the police will not write a speed ticket unless the driver is exceeding 105 kilometres per hour. According to a positivist, what is the lawful speed limit on that road? According to a Realist, what is the lawful speed limit on that road? If there is a difference between the positivist and Realist view, identify the reasons why and make clear each step in your reasoning.
3. In ‘Some Realism about Realism’ (1931) 44 Harvard Law Review 1222, 1236, Karl Llewellyn said that one of the features of Realism is ‘the temporary divorce of “is” and “ought” for the purpose of study’. Look through Llewellyn’s and Frank’s work as set out in Ratnapala. Can you identify points at which it may be clear that they are not maintaining ‘the is/ought distinction’ in their approach to the law.
4. Explain the differences between the Legal Realism of Karl Llewellyn and that of Jerome Frank.
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