Friday, December 29, 2006
Clueless in Silver Spring
My name is Mark A. Graber and, apologies to Brian Tamanaha, I do not have a clue as to what it might mean to be a legal formalist as opposed to being a legal realist.
You are correct to say that (almost) everyone urges a mix of precedent, text, and original meaning. But it cannot be said, as you appear to suggest, that we are all legal formalists, and thus the question is over what version of formalism is best. Posner, for example, explicitly and repeatedly rejects legal formalism; the pragmatic jurisprudence espoused by Justice Breyer in his book on interpretation likewise cannot be characterized as formalistic.
These are complex issues, hard to work out in blog posts, but one way to pin down the difference at issue is to consider your own reaction to Alito's testimony (quoted in my post). Did you laugh at it? Or did you agree with it and hope he lives up to it? I agree with Alito's sentiments, though I am skeptical about whether he will live up to it (owing to his past pattern of consistently conservative decisions).
A legal formalist, to put it concisely, believes that judges can and should rule in accordance with the law, not according to their political views. Many political scientists, as you know, ridicule this idea (as attitudinal studies constantly remind us). In an earlier post about ideology in judging (three weeks ago), I articulated the sense in which this is a realistic goal for judges that can be achieved, which I will not repeat here.
I endorse Solum's article because it expresses the same sentiment.
One should note that what attitudinal research demonstrates is not that justices decide cases on the basis of their values, but that the differences between justices reflect different values. Segal and Spaeth, alas, are notoriously sloppy about this and so their findings are consistently misinterpreted. Moreover, without making any jurisprudential arguments, they classify some matters as law and others as politics, even though other commentators disagree as to what counts as law. If one thinks, for example, that precedent, text, and original meanings, best interpreted, call on justices to apply the best philosophical theory of free speech, then one could have the same data as Segal and Spaeth do, but conclude everyone is doing law.
In one sense, I am more a formalist than Brian is. I not only think Alito was relatively sincere when he claimed he would decide cases only on law, but I think he sincerely thinks that is what he is doing. Where Alito and I would disagree is on Tamanaha. Alito would claim that Tamanaha is letting his more liberal views cloud his judgment on matters where they disagree. I think that Tamanaha and Alito are both engaged in sincere legal interpretation, only that how they read legal texts is invitaby influenced by their values. Thus, I think it a nonstarter to simply say to anyone, Posner, Breyer, Alito, Tamanaha, or whoever, that they are not doing law. Rather the argument has to be that their claims about the best interpretation of text, original meaning, precedent and the like are wrong.
"This is as close to a logical deduction as you get in precedential reasoning,"
I don't think being a logician is the same thing as being a "formalist." Formalists do not try to make logical "deductions" but instead pay heightened attition to legal procedure (e.g. favoring enacted text over unenacted commitee reports, or interpreting cases according to what they say rather than according to what the judge "really" was thinking). Formalists are concerned with what is legal, not with what is logical.
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