an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Legal Formalists and the Legal Realists--A Skeptical Look At An Old Story
The story about the legal formalists and legal realists is one of the foundational pieces of US legal history and legal theory. At the turn of the last century, according to this story, most everyone in law believed that law was gapless, logically consistent, and determinate, and that judges reasoned mechanically or deductively from this body of law to produce right answers in every case. In the 1920s and 1930s the legal realists came along to explode this story, demonstrating that there are gaps and inconsistencies in the law, and that judges decided on outcomes first and found legal justifications to support these outcomes. Many legal theorists and legal historians (and political scientists) have repeated this story, and have built histories and theories on top of these stories.
As The Bogus Tale of About the Legal Formalists shows, the story is fundamentally false. This article demonstrates that leading accounts about the formalists contain deliberate distortions and plain historical mistakes. It shows, moreover, that many late nineteenth century jurists said “realistic” (that is, not formalistic) things about judging.
Brian Leiter has expressed skepticism about what I have shown. Skepticism is good, for the failure to be skeptical is what initially led to the entrenchment of the false story about the so-called “formalist age.” Leiter, who has written extensively about the formalists and the realists, concedes that I have shown that there was a lot of “pre-realism” in the late nineteenth century. However, he cautions:
We are interested in the question: was there a "formalist age," i.e., an era in which something called "formalism" captured a widely shared view or ethos?....Adducing quotes of jurists and lawyers who did not embrace formalism, however, quite obviously does not establish that thesis. Are these quotes representative? Were there jurists and lawyers making formalist claims at the same time?...We need to know whether the quotes that Tamanaha collects really capture the Zeitgeist…We need to know how many eminent jurists and scholars were saying "formalist-sounding" things at the same time as those he quotes were saying "realist-sounding" things. Tamanaha may have the evidence. It is not in this paper.
As Leiter knows, the paper contains many, many statements by lawyers, law professors, and judges that are directly contrary to what the formalist story claims jurists widely believed at the time. Many of these statements were made in the leading law reviews by the leading jurists of the day. More to the point, many of the statements I quote were made by jurists who have been identified by legal historians and theorists as leading formalists. If “leading formalists” said very realistic things about judging, the story is in deep trouble. The case goes further, however. Leiter suggests that I might have selectively presented the evidence by suppressing formalist depictions of judging. But that’s precisely the point: Although I found an ample supply of realistic statements about judging, it was very difficult to find statements consistent with the purported formalist views—and I reported all of the ones I found in the article. It would be foolish of me, not to mention academically dishonest, to sit on a pile of evidence in support of the "formalism age" because it would be easy to discredit my argument.
That is, indeed, the most direct way to refute my argument: Produce a host of formalist statements about judging from leading legal academics, lawyers, and judges (which is precisely what I have done in the other direction). If the story about the formalist age is correct, after all, such statements should be plentiful and easy to find.
This is what the paper shows: There were many realistic statements about judging in the late nineteenth century, and hardly any formalist statements about judging (that I could find, with much effort). These realistic statements were made by leading judges and legal academics, as well as by leading so-called “formalists.” And many of the realistic statements I quote exude a commonsense attitude—a surprising number adorned with the phrase “as we all know.”
How else can one show the Zeitgeist? (Since I have shown that previously authoritative accounts of the “formalist age” are deeply flawed, as Leiter acknowledges, it follows that those who continue to believe the Zeitgeist was “formalist” must also be required to put forth evidence in support of their claim).
Leiter’s healthy skepticism, which is entirely appropriate, potentially veers off into dogmatism, when he makes this claim:
But let us suppose--in the best credible scenario for Tamanaha--that a significant minority or even a bare majority of scholars and jurists in the late 19th-century were saying "realist-sounding" things, the ultimate question is how that compares to the 1920s and 1930s? We might still reasonably call the late 19th-century the "formalist age" if it turns out that far more leading scholars and jurists said "realist-sounding" things in the 1920s and 1930s than in the 1870s and 1880s.
The whole idea of the “formalist age” (as is often repeated) is that most lawyers, legal academics, and judges believed in the notions set out at the outset. This was the dominant and widely held view of judging--that is what every account of the period claims. If in fact the majority of jurists said “realist-sounding” things (including, I might add, the most famous so-called “formalists”), then the entire notion of the “formalist age” falls apart. To suggest otherwise reflects, perhaps, an unwillingness to accept what the evidence shows—a desire to somehow save the old story even if emptied of its core claims.
But my argument is even stronger than that. I argue that there was just as much “realism” about judging in the late nineteenth century as there was in the 1920s and 1930s. The evidence in support of this is set forth in Understanding Legal Realism.
Leiter interprets the evidence I present as showing that “pre-realist” views existed in the late nineteenth century. This way of framing the evidence, however, continues to privilege the legal realists. What I show in "Understanding Legal Realism" is that the legal realists were second or third generation realists about judging. Just about everything they said about judging was openly said by prominent jurists in the 1880s and 1890s. [Leiter asks, if this is true, then why were the realists criticized? The answer, explained more fully in the piece, is that they were criticized for exaggerating the uncertainty of law without sufficient attention to stabilizing factors that reduced this uncertainty (a criticism which Karl Llewellyn and Felix Cohen also lodged at Jerome Frank). But the critics accepted much of what the realists said about the openness of law and interpretation—points which had been recognized for decades].
If the story about the “legal formalists” is bogus, as I argue, then we must also formulate a new understanding of what legal realism was about. And that’s what the second paper does.
I understand that these claims are hard to accept. They turn upside-down much of what we have long taken-for-granted about our past. It’s hard to give up longstanding beliefs. A number of things I have written in the past (confidently) about the formalists and the realists turn out to be wrong. It’s hard to admit error.
Brian: I'm really looking forward to reading the articles. Until then, a question or two: Did judicial *opinions* in the late 19th and early 20th Centuries look significantly more "formalist" than they would in later decades? What about treatises -- weren't they burgeoning in the so-called "formalist" age, and didn't they take a decidedly formalist tack? If so, perhaps that might help explain the realist "reaction" -- is it possible the resistance was to a formalist *pedagogy* in the treatises and in the classrooms that was in some strong sense inconsistent with what everyone actually believed?
Thanks for your questions. I have a specific discussion about judicial opinions that addresses your first question. Opinions today indeed look different today in some respects--more open discussion of policy in torts cases, for example--but in other respects they are the same (citing cases, engaging in statutory analysis). The thrust of my argument is that these changes began earlier than currently thought (realists played a role, but they were latecomers).
Your second point is also correct. To the extent that formalism was real, it was to be found more among the "legal science" views of academics (although even academics did not frame it in the extreme terms often claimed), which those in practice ridiculed. This disjunction is a very interesting part of the story.
I seem to remember, when I published my co-authored paper on assumption of risk, running into Edward White's "Tort Law In America: An Intellectual History", which cited and quoted numerous 19th Century law review articles and judicial opinions that were consistent with the orthodox view of legal formalism. (I was interested in 19th Century assumption of risk, so I didn't spend too much time reviewing these, but I did take note of the fact that White was citing them.)
Brian: I really liked Bogus. Even if wrong-headed, I don't think positing a mechanistic jurisprudence is something over which to put on a hair shirt. Rather, I think it is a category error that comes from opposing formalistic v. realistic justice in the common law courts rather than formal v. informal justice in the 19th century (which you touch on in III). There is a whole other sense of law and judging that goes back to the Bible and further to Hammurabi, that of the judge as the law-giver, the civilizer, the decision-maker. This has a rich tradition in the frontier US: the county legislative bodies were called courts (and still are in at least Kentucky); the justice of the peace system, with its non-law-trained judges and people swearing out peace warrants against each other (at least it beat the Hatfields and the McCoys); Georgia's Court of Ordinary (originally a solo legislature-executive, but always responsible for probate, widows and orphans); and Judge Roy Bean as "the law west of the Pecos". With the end of the frontier and improved communications came the ability to formalize and centralize justice, and the increasing commercialization of the country required a more predictable, less idiosyncratic justice. You note the rise of formal legal education at the same time, also the "scientific" impulse. But the quest for a principled jurisprudence never negatived the role of the judge (as you have shown convincingly). The progressives of the 20s and the radicals of the 70s were both generational movements, they saw the polity as fixed in a past that was being overcome by social and technological change. But events past, present and future are not fixed, they are moving with respect to the economy and values from which they arise.
I hope that readers will look at the criticims, to which Brian linked. I, in fact, have no interest in or investment in whether or not there was a 'formalist' age, as some legal historians whom Brian criticizes apparently believed; nothing of any jurisprudential significance turns on that fact. For jurisprudential purposes, formalism names a conception of adjudication, which has plenty of adherents to this very day. On the Realists, part of the difficulty is that Brian characterizes realism a bit loosely; if one attends to the particular theses distinctive of the Realism of the 1920s and 1930s, it is far less evident that this has 19th-century analogues, except in the 'free law' movement in Germany.
"There is a whole other sense of law and judging that goes back to the Bible and further to Hammurabi, that of the judge as the law-giver, the civilizer, the decision-maker. This has a rich tradition in the frontier US: the county legislative bodies were called courts (and still are in at least Kentucky) . . . ."
Both New-Plimoth (Plymouth) and Massachusetts-Bay colony governances were by "general court" (there was no separation of powers as we understand it: the makers of the law were the triers of violations of the law, and the sentencers of those found guilty of violating the law). There was a governor, and he was sort of the "chair" or "chief magistrate" of the General Court.
The Massachusetts legislature is still the "General Court," though they don't do as much unilateral hangin' (whippings, cutting off ears, splitting nostrils, in actuality -- along with the occassional hangin' of a Quaker or other miscreant stubbornly holding to, and even flaunting, a "wrong" "religion," of course) as they once did to sustain the theological politics of terrorization.
Probably there are fewer hangin's also because there are so few Republicans available on which to test the efficacity of the current science of rope-making.
From studies in the legal history it was a bizarre arrangement which resulted in some bizarre forms of sentencing. But by-and-large their statute law shows that there's nothing new under the sun -- though we have backed off, at least in Massachusetts, hangin' folks for burglary, breaking and entering, and adultery, and threatening execution of those who dare blaspheme the Lord through the divinely right/eous governor and his closest cohorts.
One particular case sticks in mind: a number of young teenagers -- boys and girls -- got caught -- um -- "experimenting" as they are wont to do (which we never did, of course). They examined the girls, and -- sure enough -- they were no longer virgins.
The girls were whipped publicly in Boston. The boys were whipped publicly in Boston -- then brought to Cambridge and publicly whipped there. Thus the evidence on which we conclude that women are oppressed.
Two other cases stick in mind, though too lengthy to detail in full. In one, a woman and two men were tried and sentenced for adultery -- she was also married, but not to one of those two men.
The other was a case of child molestation -- careless of judgment, as the girl was the daughter of a Magistrate (judge). The two men were subjected, among other things, to having a nostril split and seared with a hot metal rod. In Boston. They then were taken to Cambridge, and their unsplit nostril was split and seared with a hot rod.
Another part of the sentence: to wear nooses around their necks, with a four foot length of rope hanging from them -- for life.
The full sentence went on for a page-and-one-half of fine print, and the writing was without extranious verbiage.
I doubt they impose precisely the same sort of sentences today, but then again, I don't follow the criminal law so can't be certain.
All in all, better to be a magistrate than a malefactor.