Tuesday, May 22, 2007

The 'Big Story' in Our Legal History is Wrong

Brian Tamanaha

For many decades, the American legal culture has held to a tale about judging that progresses from blind obtuseness (or duplicity) to sophisticated awareness. According to this story, a bad “formalistic” stage of judging dominated from the 1870s through the 1920s: the law was portrayed as comprehensive, gapless, and logically consistent, with a right answer in every case, and judges reasoned mechanically (or at least pretended to do so) from abstract concepts, or in a rule-bound and precedent-bound fashion with no attention to social consequences. In the 1920s and 1930s, the Legal Realists, building on the work of Oliver Wendell Holmes and Roscoe Pound, shattered the formalist view of law. The Realists argued that the law is filled with gaps and inconsistencies, that there are exceptions for almost every rule or principle, that precedents can be found on all sides of an issue, and that judges (influenced by their predilections) arrive at a result first then find or manipulate the law to rationalize the result.

This story has been repeated innumerable times, and structures how we think about law and judging today: formalism is naïve, bad, or false; every sensible and candid person is realistic about judging.

This story is wrong in fundamental respects, as demonstrated by “The Realism of the ‘Formalist’ Age.” Quoting numerous speeches and articles, the paper shows that consummately realistic and skeptical views of the law were widely expressed throughout the formalist period, often by judges and leaders of the bar. The paper reveals that our one-sided image of the “formalists” was constructed by critics of the courts in a manner that systematically excluded this realistic understanding. It also shows that the Realists were merely the latest and most self-conscious episode in a constant stream of skeptical views about law that extends back many decades.

The objective behind the paper is to shake the hold of the formalist-realist antithesis that dominates and distorts contemporary views of judging. Dislodging this old story may help ease the way toward recognition of a realistic approach to formalism that is advocated by many judges (Judge Harry Edwards, for example) and legal theorists (Fred Schauer, Larry Solum, for example, and me in this post), although nothing in the paper itself leads unequivocally to this view.

What the paper makes clear is that we can no longer talk about “the formalists” in the same old ways, and perhaps not at all. Critical comments are welcome by direct email.


This is a terrific article. Its one flaw is that it cites only speeches and articles, not court opinions. If it had analyzed actual judicial rulings to make its revisionist view of "formalism" it would be much stronger. It must not be forgotten that Roscoe Pound, one of the targets of this article, was a practicing lawyer and Commissioner of the Nebraska Supreme Court during the heyday of "formalism." He knew first hand what he was writing about.


In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. "Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. . .The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
---John Marshall Harlan
Sure its only the dissent, but....its correct.


You are correct about this flaw in the paper (and your point about Pound is well taken). Rather than analyze any opinions myself, I recited views at the time about the opinions.

The problem is that--besides the vast amount of work that would be required--it's not clear to me how or whether we can get beneath the style (or styles) of opinions to get at what is going on.

It's a puzzle.


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