The scholars known
as the "Legal Realists" in particular criticized legal reasoning that implied
that analogies, once discovered, decided cases; instead, they argued for contextual
analysis of the policies and consequences implicit in alternative responses to
practical problems. See, e.g., Edward H. Levi, An Introduction to Legal Reasoning
1, (1949)(viewing as mere pretense any efforts to reconstruct analogical reasoning
into the producting of rules that can be applied deductively). The Legal Realists
differed from Posner, however, who called for the development of an explicit,
strong theory for making policy judgments (microeconomics being his theory of
choice). For a basic discussion of Legal Realism, see Morton Horwitz, The Transformation
of American Law : 1870-1960, 169-212 (1992). For opinions reflecting the realist
approach, see the dissent in "International
News Services v. Associated Press, 248 US 215 (1918)."