The high legal realist period of the 1930s was not known for its criminal law scholarship, while until fairly recently, criminal law theory was not as well-developed as those fields that had faced a realist and post-realist critique. This Essay attempts to address these issues by describing in detail the criminal law scholarship of Thurman Arnold, a prominent realist whose best known academic writings were his mid-1930s monographs on the New Deal and resistance to it. Arnold’s criminal law scholarship serves as a forgotten link between the classical doctrinal work that dominated midcentury legal academic work on criminal law and the more socially- and culturally-focused scholarship of recent decades. Reconsidering Arnold’s sociological, doctrinal, and cultural analysis of criminal law, law enforcement, and the criminal trial informs our understanding of the history of criminal law scholarship, legal realism, and post-realist legal theory.
Mark A. Fenster, The Dramas of Criminal Law: Thurman Arnold’s Post-Realist Critique of Law Enforcement, 53 Tulsa L. Rev. 497 (2018)