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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Unsupported Assertions About the Formalist Age: A Response to Leiter
For several generations now, the US legal culture has almost universally accepted an account of our history that goes like this: The 1870s through the 1920s was the “formalist age,” when most lawyers and judges believed that law is comprehensive, gapless, internally consistent, and logically ordered, and that judges mechanically deduce single right answers in cases. The legal realists came along in the 1920s and 1930s—building on Holmes, Pound, and Cardozo—to explode the formalist myth, showing that law is filled with gaps and contradictions, that contrary precedents exist, that judges make choices and create law, that their personal views sometimes influence their decisions, and that often judges reason backwards to provide legal justifications for a preferred result. This story has been repeated innumerable times, especially by legal theorists. Most everyone in law accepted it.
My new book, Beyond the Formalist-Realist Divide (2010), argues that the story about the formalist age is largely false. I produce a substantial body of evidence showing that many leading jurists during the so-called formalist age expressed consummately realistic views of law and judging. Much of what the legal realists said about judging, it turns out, had been said decades earlier by leading judges, lawyers, and legal scholars. This revelation has implications for both formalism and realism. If in fact there was no “formalist age,” it stands to reason that our understanding of the role played by the legal realists must be modified. My book attempts to reopen these historical issues, and to dislodge the formalist-realist antithesis that dominates contemporary debates about judging.
While early reviews have been mostly positive (see here by Stanley Fish and here by Ed Rubin), I expect that the book will provoke a critical backlash, especially from scholars who have written authoritatively about the formalists and the realists in the past. Brian Leiter’s recent review of my book raises a cluster of doubts echoed by a few other skeptics. They suggest that I have highlighted unrepresentative instances of proto-realism among an otherwise formalist majority, or that I have quoted early realistic statements out of context, or that I have engaged in a selective presentation of the historical evidence.
I will respond to these doubts below, but first it is essential to mention one of the more striking findings of my study. Virtually without exception, legal theorists who purport to describe what the formalists stood for or believed in do not quote any formalists saying such things themselves.
Leiter is a prime example. In Naturalizing Jurisprudence, his 2007 book about legal realism, Leiter writes:
What has always distinguished ‘formalism’ in law is not simply the thought (common to the Realists and Langdell) that adjudicative outcomes might have causal determinants and thus be predictable, but rather that they are predictable in virtue of the law being rationally determinate: that is, in virtue of the class of legitimate legal reasons justifying a unique decision in each case. It is the latter that distinguishes Langdell’s science of law, and legal formalism proper, from Legal Realism. For the formalist, decisions can be predicted because the law is rationally determinate: if you know the relevant legal rules and you know the distinctive methods of legal reasoning, you know what courts will do. (92)
Despite the confident air of his assertions (here criticizing legal historian Neil Duxbury for misunderstanding formalism), Leiter, it might be surprising to learn, does not cite to or quote from any turn of the century “formalist” jurist anywhere in his book (in connection with his assertions about Langdell Leiter refers only to Anthony Kronman’s The Lost Lawyer). There is no indication that Leiter has ever actually read the work of any purported formalist jurist. Leiter offers no textual support, cites no primary material, presents no evidence from any formalist jurist writing at the time, on behalf of his claims about formalism.
Leiter is not alone is issuing confident proclamations about the formalist age without supplying textual support from the supposed formalists themselves. Many legal theorists—including me (previously)—have done the same. (Legal historians, in contrast, have been more nuanced and circumspect). The story about the formalist age has been repeated by legal theorists again and again, embellished over time in the course of our collective telling. That’s how the story about the formalist age became deeply entrenched even as it grew further detached from the historical reality.
My book is not only an effort to correct a false account of our legal past and redress its harmful legacy. It is, in addition, a critical reflection on the scholarly practices of legal academics. It exposes how the political biases of scholars, our repetitive citation practices, the construction of narratives around (preternatural) heroes and (stupid) reactionaries, and the temptation of theorists to confuse their armchair reconstructions with reality, can mix to spawn widely accepted verities which just aren’t true.
The takeaway lesson is that legal theorists should proceed with caution when making assertions about the past—and we should take care to see that our claims are firmly grounded in historical evidence.
This brings me to Leiter’s review. He observes:
Tamanaha adduces enough evidence, in my view, to state at least a prima facie case against any historian who wants to claim that in the 19th century jurists and scholars generally believed that common law judges did not make law in new circumstances and that judging was simply a mechanical exercise in deductive judging.
Leiter ultimately concludes, however, that I have failed to establish my central thesis:
We are trying to assess, remember, whether there was something that deserves to be called a ‘formalist’ age. Presumably no one committed to the existence of such a period thinks that everyone thought monolithically at that time….It is not enough to quote this or that judge or scholar saying anti-formalist, proto-realist things in 1880. We need to know: how were these remarks received by their professional peers? Were they widely echoed and repeated? Or were they criticized and rejected by others at the same time—or simply ignored? Tamanaha demonstrates in several different cases that thinkers alleged to be ‘formalists’ by later historians and theorists in fact held some anti-formalist views, and that is a welcome and important corrective. But it simply does not establish his central historical thesis.
Leiter raises serious questions. My central thesis is that the conventional story about the formalist age is false. (Note that I state my thesis negatively: the conventional story is wrong!) The burden is on me to prove my thesis.
Here a quick summary of my key evidence:
1. I have supplied dozens (not a handful) of statements by legal professionals from the 1870s through the 1910s that contradict the story of the formalist age. These statements acknowledge that law runs out, that inconsistent precedents exist, that judges have discretion and must make choices, that judges sometimes work backwards from results, that judges’ personal views sometimes influence their decisions, that legal rules and principles are often indeterminate, and so on. These statements are uttered by leaders of the bar, prominent judges, deans of law schools, leading academics, state and national politicians, and practicing lawyers—and they are made in a variety of settings, from speeches to the bar, to political gatherings, to articles in top law reviews. This broad array of speakers and contexts shows that these views were widely expressed and well known and within the legal culture.
2. These realistic statements, moreover, were as radical as anything the realists would say decades later. Dean William Hammond, for example, observed in 1881: “It is useless for judges to quote a score of cases from the digest to sustain almost every sentence, when everyone knows that another score might be collected to support the opposite ruling….The 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.” A lawyer wrote in 1893 (in the leading law review of the day) that when no clear precedent exists, a justice’s decision “will be largely controlled by the influences, opinions, and prejudices to which he happened to have been subjected.” Professor Christopher Tiedeman remarked in1896: “The bias and particular views of the individual judge do certainly exert a considerable influence over the development of the law.” Leiter suggests that I am prone to taking quotes out of context (inevitable to some degree in every historical study), but statements like this speak for themselves. I present many such statements, which cannot all be explained away as distortions on my part.
3. More pointedly, as Leiter acknowledges, a bunch of the realistic statements I provide were uttered by the very jurists we now think of as major “formalists.” If even the purported “leading formalists” said realistic things about judging, then who were the champions of formalism?
4. I show, furthermore, that the seminal accounts of the formalist age—written by Pound, Frank, and Gilmore—contain gross distortions (by Frank especially) or clear errors (by Gilmore), or are directly contradicted by many jurists writing at the time (Pound).
5. Finally, as evidence of prevailing views, I show that jurists of the day explicitly prided themselves on having made substantial progress in overcoming formalism in law. They too were critical of excessive legal formalism, which they considered a primitive legal stage. One jurist in 1893 noted the contemporary “Zeitgeist and its dislike of formalism.”
In the face of this considerable evidence, Leiter opines that the conventional story about the formalist age withstands my challenge. His negative assessment begs obvious questions: What more must I show? How can I show it? A skeptic cannot tut-tut that I have not established my thesis no matter how much historical evidence I pile on. And here is the crucial unanswered question: What historical evidence does Leiter rely upon when he concludes that the story about the formalist age holds up?
There is a straightforward way to show that my book fails: simply produce a few declarations of formalism from the pens of leading nineteenth century jurists. Leiter is entirely silent on this score. He quotes no formalists from the time setting forth the formalistic vision of law and judging. If the conventional story is correct, there should be a plentiful supply of avowed formalists proclaiming that the law is comprehensive, gapless, and logically ordered, and that judges engage in mechanical deduction. (German legal science at the time described judging in the civil code system in such terms, but judging in the common law system was not described this way.)
The case I present to debunk the story about the formalist age has two sides: 1) the surprising abundance of realistic statements about law and judging; and 2) the surprising dearth of formalist statements about law and judging. Raising a few doubts about the former aspect of my evidence and argument does not answer the latter.
Leiter might respond that he is a legal philosopher, not a historian, so my retort misses the mark. The onus is not on him to produce historical evidence (even when he ventures to draw historical conclusions). His criticisms of my book are jurisprudential in nature, he might say, and they focus on my jurisprudential arguments.
The historical and the jurisprudential aspects of my book are distinguishable, as Leiter correctly notes. The two are not unrelated, however, because contemporary jurisprudential arguments about formalism and realism have been constructed out of, and are products of, our historical understandings of the formalists and the realists. (When making this observation, I am not committing the “genetic fallacy”—for I acknowledge that, notwithstanding false historical roots, jurisprudential formulations must still be judged on their own merits.)
What most stands out about Leiter’s review, at least for me, is his serene certainty that he knows, and has long known, precisely what formalism is about and precisely what realism is about. Nothing I reveal in my book appears to have touched his jurisprudential understanding in the least—never mind the fact that like most legal theorists he too has made a number of claims about the formalists and the realists that now appear to be dubious (see the paragraph quoted above). [For example, Leiter wrote in a previous article: “we may characterize formalism as the descriptive theory of adjudication according to which (1) the law is rationally determinate, and (2) judging is mechanical. It follows, moreover, from (1), that (3) legal reasoning is autonomous, since the class of legal reasons suffices to justify a unique outcome; no recourse to non-legal reasons is demanded or required.” I could find no jurist from the time who described judging in these terms, while many jurists (including judges) portrayed judging as anything but mechanical and explicitly asserted that social factors do sometimes play a part in legal decisions.]
Manifesting this confidence, Leiter repeats several times in his review that my accounts of formalism and realism are “sloppy” and “confused.” “Unfortunately,” writes Leiter, “the thesis that jurists do (or do not) ‘hold’ formalist or realist views turn on sloppy characterizations of these views by Tamanaha (sometimes echoing sloppy characterizations by others.).” As far as I can tell, I am guilty of confusion (along with unnamed others), according to Leiter, because my working formulations of formalism and realism differ from his.
Most theorists and historians who write on these topics do not share Leiter’s self-assuredness about formalism and realism—whether considered in historical or jurisprudential terms. Cass Sunstein wrote that “it is not easy to define the term formalism.” In a superb theoretical essay on formalism, Fred Schauer remarked that “Even a cursory look at the literature reveals scant agreement on what it is for decisions in law, or perspectives on law, to be formalistic.” Commenting in a Chicago Law Review symposium dedicated to formalism, Richard Pildes observed that the contributors postulated different versions and “it is implausible to see them as representing any unified, coherent vision of modern legal formalism.” Historians and theorists have expressed similar uncertainty about realism. A book on legal realism by legal historian John Henry Schlegel begins with the observation that “The questions of who were the realists and what was realism are not trivial and are still contested.”
Formalism and realism in the legal context originally were casual terms with no theoretical content. “Formalism” has been invoked most often to insult a judge or express unhappiness with a decision. “Realism” was used by Frank and Llewellyn to demean their targets as unrealistic; the legal realists were not a discrete group of legal thinkers with shared views (Llewellyn closed his key article on realism with this telling insistence: “A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group.” Earlier in the article he emphasized the same point: “Their differences in point of view, in interest, in emphasis, in field of work, are huge.”)
Most thoughtful scholars who study formalism and realism come away with unresolved questions and an appreciation of the elusiveness that surrounds both. The evidence I uncover in my book increases this uncertainty. When discussing matters that are deeply unsettled, certainty on the part of a theorist perhaps comes across as analytical clarity or solidly grounded knowledge, but it might be a sign that the theorist is missing something, or is distorting matters though oversimplification, or is prematurely closing off the inquiry.
Even readers skeptical of my historical case acknowledge that I have uncovered a trove of information that runs contrary to what we have long assumed about our past. The impulse to hold fast to the familiar conventional story is understandable. We have repeated the story for a very long time; we have built a vast complex of historical narratives and theoretical constructions on top of it. This is hard to give up—and there are no obvious replacements.
Certainly it is essential to critically challenge my argument in every respect (historical and conceptual). My book does not purport to be conclusive on the issues raised; rather, it opens a discussion long treated as closed. In addition to testing the soundness of my argument, however, it behooves legal theorists and legal historians to genuinely contemplate whether or in what ways the new information I provide changes or should change our understandings of formalism and realism. Perhaps then we can make progress. Posted
by Brian Tamanaha [link]
"What most stands out about Leiter’s review, at least for me, is his serene certainty that he knows, and has long known, precisely what formalism is about and precisely what realism is about."
This hubris is shown by many who use "originalism" to promote a path that many claim leads to less of it. These are general remarks, so I'm not trying to say Leiter himself puts forth that philosophy. I don't know his philosophy really. But, I recognize the tone.
At least, this is what I have seen while discussing the matter from my more amateur perspective. The ignorance of history (or rather selective citation to defend one's p.o.v.) is repeatedly shown as well.
"History is more often than not ambiguous; therefore, it should seldom be determinative." So noted Eugene Van Loan III in an article discussing the 9A and interpretation of the Constitution generally. This to him didn't mean history wasn't useful. It just was not the only thing.
Looking over Prof. Tamanaha's book (and SSRN articles that address part of its discussion), I find this a good policy. If history is used, it should be used with more humility than some who this post addresses too often use ... and with a certain chip on their shoulder half the time to boot!
But, that's just my basic view. I leave the rest to the professional theorists around here.
I think a scholarly dispute should be carried out in scholarly fora, and not in a superficial blog posting or blog comment. But I will make just two brief points:
1. I am not a "prime example" of someone who makes historical claims about the formalist age. (You misrepresent me that way in the book, and I corrected that misrepresentation in the review essay, so it's really a bit scandalous to repeat the misrepresentation here. Indeed, you even quote the same passage again that you quote in the book, failing, again, to note that I am characterizing a theory of adjudication, whose interest or plausibility does not turn on its historical pedigree.) The historical claims are, indeed, irrelevant for philosophical purposes, and you do not show otherwise (indeed, I take it you concede the point). I am primarily interested in formalism and realism as philosophical theories about law and adjudication, as I indicate quite clearly in my review essay. (Unlike formalism, however, I have also defended at length historical claims about what the American Realists thought, and here I do contest your historical claims, which trade on sloppy characterizations of Realism.)
2. I do not "opine that the conventional story about the formalist age withstands [your] challenge." To the contrary, as I state, even in the abstract of the paper, you make a prima facie case against anyone who wants to claim that Natural Law Formalism and Vulgar Formalism were prevalent in the 19th-century. You do not shed any light, however, on whether philosophically interesting forms of formalism, what I call Sophisticated Formalism, were or were not prevalent in the 19th-century. There are also evidential questions you neglect that would establish your thesis that there was no formalist age, but that doesn’t mean the “conventional story” withstands your criticisms: you have shifted the burden of proof on this historical thesis (that’s what it means to say you have made a prima facie case).
Leiter's objections seem to hinge upon the dubiously useful category of the "philosophically interesting" which he seems to conflate with "relevance." Given that he notes in passing the importance of such irrelevant ideas to current political debate, one wonders how he can find such things uninteresting.
Leiter plays the categorical "no true Scotsman" shell game that one would expect from obnoxious theorists on either side of the Midway, but is it possible that he is vastly mistaken about the intended audience of the book? For one to arrive at the detailed conceptualization of realism that Leiter demands, of course, one must actually be Leiter. Was this book written to please Brian Leiter?
Perhaps he is correct on all counts--"vulgar formalism" is nothing anyone cares to talk about, save those presumably superficial (but vocal) shapers of popular culture. Realist adjudication is vastly more complicated than a simple appeal to politics. Obviously, such distinctions are far more "philosophically interesting" in scholarly fora.
Unfortunately, Leiter has failed to notice that public policy is not always informed by what is "philosophically interesting." The current arguments about the proper roles of judges in American politics are hardly hinged upon whether something tickles someone's inner Dworkin or one's inner Schauer. Moreover, he fails to see, perhaps disingenuously, why history should be relevant at all to the discussion, even in a political era where nostalgia for a more perfect past (think Tea Party) is a primary political tool.
I say disingenuously because Leiter notes on several occasions that the "hoi-poloi and grandstanding politicians" are in favor of a vulgar formalism that isn't philosophically interesting. He turns and uses this distinction as proof of both why a formalist/realist division is useful and why it should be maintained.
I think that's the serious problem with the review: Leiter's myopic concern with defending the gates of his own conceptual framework (and legacy, I suspect) has blinded him to the possibility that the book could be speaking to someone other than Brian Leiter. Breaking down the idea that good judges are formalists in the vulgar / reduced sense and that bad judges are jaded realists is probably not a concern for someone who is interested in adjudication in and of itself.
It might, however, be a topic of concern for the hoi-poloi and the grandstanding politicians--you know, the sort that visit superficial blogs despite the fact that the participants are all legal scholars and almost all of the commenters have graduate degrees.
Ultimately, I think Leiter fails to understand the importance of historical context, not only in understanding the origins of polarization in the crossroads of politics and jurisprudence, but also in the reception and relevance of the very work he criticizes.
"[H]istorical claims are, indeed, irrelevant for philosophical purposes."
The claims themselves may be but if our arguments are meant to be founded in anything other than formalism, if the attempt is to represent something in the world, then the historical record of debate is extremely important.
But Leiter's philosophical naturalism discounts the importance of historical knowledge itself. Leiter links approvingly to Alex Rosenberg's essay "The Disenchanted Naturalist’s Guide To Reality" which ends arguing that "History Is Bunk."
If the history of empiricism is bunk, then empiricism is bunk.