The Realism of the "Formalist" Age

Brian Tamanaha

Jack's recent post reminding us that there were several generations of Realists extends further than he realizes. I am working on an article (and now breaking my self-motivating pledge not to blog until it is completed) which shows that pervasive realism existed throughout what we think of as the formalist era. Here is a brief excerpt from the Introduction (footnotes deleted):

The standard account of the “formalist” age is fundamentally false. The prevailing understanding of law and of judicial decision making throughout this period was, in essential respects, every bit as realistic as the accounts propounded by the later Realists. Consider the following observations set down in 1881, smack in the period identified by Llewellyn as formalist and by Pound as the “height” of “mechanical jurisprudence:”

It is useless for judges to quote a score of cases from the digest to sustain almost every sentence, when every one knows that another score might be collected to support the opposite ruling. The perverse habit of qualifying and distinguishing has been carried so far that all fixed lines are obliterated, and a little ingenuity in stating the facts of a case is enough to bring it under a rule that will warrant the desired conclusion….[T]he most honest judge knows that the authorities with which his opinions are garnished often have had very little to do with the decision of the court—perhaps have only been looked up after that decision was reached upon the general equities of the case….He writes, it may be, a beautiful essay upon the law of the case, but the real grounds of decision lie concealed under the statement of facts with which it is prefaced. It is the power of stating the facts as he himself views them which preserves the superficial consistency and certainty of the law, and hides from careless eyes its utter lack of definiteness and precision.

These startlingly realistic observations, published in the Southern Law Review, were delivered in an Address by W.G. Hammond upon becoming the first full time Dean and Law Professor at St. Louis Law School (now Washington University School of Law). Hammond, it must be emphasized, who was previously the Chancellor of the University of Iowa department of law, was no radical. A telling aspect of his presentation is the sense it exudes that his audience shares in his declared skepticism (“every one knows”).

Many similar statements about the law and about judicial decision making were issued in the 1870s, 1880s, 1890s, and the early 1900s, throughout the entire formalist era. Here is a brief sampling of realistic statements from the time, all of which carry the marks of familiarity with the audience. In 1871, the Editors of the Albany Law Journal declared in a commentary on judicial elections that “excision of politics from the judicial mind is impossible,” and worried that a partisan judge would “fight for the cause in secret, and shelter his animosity under the pretext of law.” A member of the bar, Henry Craft, urgently wrote in 1878 (also in connection with judicial elections) that people must be advised of “the magnitude and vast range of powers and discretion confided to the judiciary....” Craft warned about the “details of unsettled rules of property and personal rights—of inconsistent and conflicting decisions—of instability in adjudication made, and want of adherence to what was of old established [precedent]…” Judge Seymour D. Thompson, in an 1888 address to the Georgia Bar, observed that “doubts and infirmities seem to permeate every title of our case made law,” adding, “what is called legal sense is often the rankest nonsense.” In 1890, Judge Thomas Ewing told the annual meeting of the Kansas Bar that in about 40% of the cases litigated in Kansas there is either no authority (in a few cases) or “the decisions conflict, and a large weight of reason and authority is found on both sides.” Lawyer-professor John C. Gray (founder of Ropes & Gray) asserted in 1892 that one of the main sources of law is “the opinion of judges on matters of ethics and public policy;…[though] the judges themselves have a deprecatory habit of minimizing it, and of speaking as if their sole function was to construct syllogisms…” The President of the American Bar Association (ABA), Judge U.M. Rose, remarked in his 1902 Address that, owing to the proliferation of cases and legislation, judges have “discretion…in deciding cases…; for our courts can generally find precedents for almost any proposition.” In 1911, United States Senator Robert L. Owen asserted that judicial decisions are to some unavoidable degree a function “of previous predilections, of previous fixed opinion, of the point of view which has molded itself in the personal experience of the judge and become a part of him.” Chief Justice Albert Savage of the Maine Supreme Court, in 1914, acknowledged that cases arise in which authority can be found on both sides or precedent is lacking—“And it would be contrary to all human experience to say that his temperament and his predictions may not give color to his conception [of the law].” In his 1916 Presidential Address to the ABA, Elihu Root, one of the nation’s leading lawyers and public officials (a Senator, Secretary of State, and winner of the Nobel Peace Prize), observed that “The vast and continually increasing mass of reported decisions which afford authorities on almost every side of almost every question admonish us that by the mere following of precedent we should soon have no system of law at all, but the rule of the Turkish cadi who is expected to do in each case what seems to him to be right…”

While ample statements of this realistic sort can be found throughout the five decade period (roughly 1870-1920) identified by Gilmore as the Formalist age, there is far less talk of law as a logically consistent, comprehensive body of rules and principles that dictates the right answer in every case, or of judging as a mechanical, deductive process—and many of the statements that were made along these lines issued from academics. Root declared that “The natural course for the development of our law and institutions does not follow the line of pure reason or the demands of scientific method.” Henry White, a member of the bar, wrote in the Yale Law Journal in 1892: “If the law were an exact science and furnished a complete system of rules which could be applied without serious difficulty and with certain results in every case, perhaps it would be better not to look beyond the written law in determining controversies. But…most cases of any difficulty present questions of law on which no one can confidently predict the decision. Most important battles in the courts, which do not turn on questions of fact, are fought on the frontier of the law, where the ground is unsettled, and where new rules are being formulated and new precedents made.”

To get a sense of prevailing attitudes about judicial decision making, it is also helpful to know how they viewed formalism. Unlike the Realist movement, which was to an extent self-defined, the judges and jurists purportedly guilty of formalism never identified themselves as “formalists.” Critics—led by Llewellyn—pejoratively tagged this label on the judges of the period. In the final quarter of the 19th century (and earlier ), however, “formalism” was uniformly condemned. A judge in 1857 castigated “ignorant and slavish formalism.” The term was generally understood as the rigid adherence to procedural requirements and technical pleading rules that often produced unjust or absurd results. Although many vestiges of it remained, after mid-century this general approach was considered primitive; thereafter, the label “formalistic” was a term of abuse. An article on legal education written in 1876 remarked that “the archaic period…is the period of rigid formalism,” and observed that the U.S. common law system had moved beyond that stage to focus on principles, though residual procedural formalism remained to be rooted out. To call a judge “a formalist and a hairsplitter” was an insult. The great evidence scholar John Henry Wigmore, in 1892, charged that judges who enforced a particularly impractical rule (on the admission of scientific testimony) would “be guilty of a formalism which is neither creditable to the law nor beneficial to litigants,” although he went on to note that the rule was in practice “partially evaded and nullified” by judges. “The tendency of the day is towards creating more competent trial judges and vesting in them a larger discretion, and that policy should be here exemplified.” These various references indicate that attitudes at the time were not just against formalism—there was a general belief that they had freed themselves from the worst kinds of formalism and that additional progress, still admittedly necessary, was underway.

We have for many decades now held on to and perpetuated an extraordinary misunderstanding about an essential period in our legal history. The significance of rectifying this error extends beyond just getting history right. This false narrative has large contemporary implications. Being a “formalist” continues to connote foolishness or dishonesty, a slavish adherence to rules contrary to good sense or manipulation under the guise of adherence, which leaves being a “realist” the only apparent option for the smart and honorable. But realism appears to suggest that judicial decision making is not truly rule bound at all, which strikes many as an unpalatable and extreme position. If we can discard the formalist-realist antithesis that structures and constrains our thinking on these matters, it may be possible to develop an understanding of judicial decision making that does not seemingly force us to either extreme.
Posted 11:00 AM by Brian Tamanaha [link]