Tuesday, November 10, 2009

Beyond The Formalist-Realist Divide

Brian Tamanaha

Modern views of judging are dominated by the formalist-realist divide. Formalism represents the proposition that judges engage in mechanical deduction from legal rules to decide cases, whereas realism is the opposite proposition that judges choose outcomes then marshal legal rules to justify their preferred decision. This framework is the product of a widely taken-for-granted historical narrative about the "formalist age," which purportedly dominated from the 1870s through the 1920s, until the legal realists came on the scene in the 1930s (building on Holmes, Pound, and Cardozo) to destroy prevailing formalist views of judging.

Beyond the Formalist Realist Divide: The Role of Politics in Judging comprehensively challenges this framework. The "formalist age" was a fiction created by critics to discredit courts. Realism about judging was commonplace in the 19th century, well before the arrival of the legal realists (and before Holmes, Pound, and Cardozo); the most famous so-called formalists, it turns out, had very realistic things to say about judging, as did many others. The legal realists, accordingly, did not bring about a revolutionary change in understandings of judging; furthermore, contrary to their image today, the realists were not radical skeptics of judging.

The United States legal culture has swallowed whole a largely false account of our legal history. The book demonstrates that this false yet widely believed story has warped political science research on courts as well as legal theory debates about judging.

The historical argument in the book will likely generate controversy, for the conventional formalist-realist narrative has many expositors and defenders. It is stupefying to think that we could have been collectively wrong for so long about something so important and well known. Until conducting the research for this book, I too believed that it was true. The abundant evidence I present to show that it is false will come as a shock to many.

This book, however, is aimed at addressing views of judging today. The objective of the book, taken up in the second half, is to construct a better framework for contemporary research on and debates about judging. Dozens of judges (including Judge Sotomayor, before her confirmation hearing) and jurists, past and present, as conveyed in the book, have expressed balanced views of judging that reject both formalist and realist extremes. The recovery and explicit formulation of this balanced view of judging will provide a more productive starting point for empirical, normative, and theoretical understandings of judicial decision making.


"Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign

"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law

"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals

Older Posts
Newer Posts