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Progressive Formalists?
There is a very interesting post by Brian Tamanaha on Balkinization, entitled, Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely). Read the whole thing, but here is how it ends:
Finally, I must preempt a misimpression that might be created by the tenor of this post, which has articulated reasons why liberals should take legal formalism seriously. Although I am a liberal, those are not my reasons for doing so. I genuinely believe that the rule of law is essential to our society. Liberals and conservatives disagree about much, but on recognizing the signal importance of the rule of law we should be united. At the core of the rule of law is legal formalism, especially legal formalism by judges. For this reason:

"My name is Brian Tamanaha and I am a legal formalist."

(Yuck, that was not an easy statement to make—try it and see.)
What with Jack Balkin now advocating a version of original meaning originalism (I will be uploading a reply on SSRN to his Abortion and Original Meaning soon), this may be the harbinger of a very interesting trend among legal academics.

BTW, Brian has a new book out that I am looking forward to reading entitled, Law as a Means to an End: Threat to the Rule of Law. Here is the publisher's description:
The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.
Kovarsky (mail):
I'm not so convinced that this is earth-shattering and so I think the sense of catharsis is overstated. It seems earth shattering because the right has so successfully carcicatured the left as anti-deterministic for so long.

I know a whole host of liberals (myself included) that think Roe was a terrible decision at the time it came down, that the administrative state got way, way too carried away, etc. etc.

But administrative extremes happen on the right and the left, as does judicial "activism." As is usually the case with neutral terms, the right beat the left to saddling "activism" with a political valence (left-leaning political people are necessarily activist). So you end up with people sheepishly waving their hands and staking claim to intellectual territory that they should have owned since the beginning.
1.2.2007 4:14pm
Bobbie (mail):
The equivocation with "legal formalism" and the "rule of law" is one of the rights many great Orwellian victories. It's also a sad reflection on the current training of legal philosophy in law school. Sadly, the rights caricature of legal realism -- the law is entirely indeterminate -- has never been held by any philosopher of note, as far as I know. It certainly isn't the dominate view of any legal realists movement I'm aware of.

Legal realism is entirely compatible with the rule of law; at its base, legal realism simply affirms that legal norms can't always answer legal disputes, so judges must turn to other norms to resolve tough questions. To use one oft-cited example: whether the constitution allowed states to ban homosexual sodomy might have been legally indeterminate. Legal norms couldn't resolve that dispute, so the judges used non-legal norms to come to their conclusion (whether they realized it or not). On the other hand, the law did constrain the judges. They couldn't, for example, have Lawrence executed, among other things. Thus, the law constrained the judges (and the rule of law was followed), but the ultimate disposition of the case was decided on extra-legal grounds.
1.2.2007 4:42pm
Kovarsky (mail):
<i>It's also a sad reflection on the current training of legal philosophy in law school. Sadly, the rights caricature of legal realism — the law is entirely indeterminate — has never been held by any philosopher of note, as far as I know. It certainly isn't the dominate view of any legal realists movement I'm aware of. <i>

I forget the George Burns quote exactly, but I've always thought that a philosopher in a courtroom was like a eunuch at a gangbang. I am quite sure that no philosopher of note has ever said that "law is entirely determinate." I am not even sure what that phrase means, but I am equally sure that in whatever sense you are using the word "is" (descriptive or normative), no philosopher of note has ever said that law is "entirely indeterminate."

I think your problem is what you mean by a "legal norm." Maybe you mean an "interpretive norm" or something like that. Your categorical phrasing elides the important issue - which norms are more determinate than others. Certainly the interpretive norm that all words mean what an average reader would think they mean is not platonically determinate, but it's more so than the interpretative norm that all words can mean whatever an interpreter wants them to mean.

I take realisms' central claim to be that legal outcomes are driven primarily by the interpreter's preference, not by an agnostic exercise in objective interpretation. Fine. Of course "subjectivity" is going to pollute any interpretive exercise. We're not idiots; we took postmodern literature classes. But to admit that subjectivity is to play a role doesn't get you out of the thorny question involving what rules are less subjective than others, and in what instances subjectivity is undesirable.
1.2.2007 5:05pm
Bobbie (mail):
I'm using the phrase "legal norm" as it is commonly used. If a judge consults a legal source -- for example, a statute, a case, the constitution -- to resolve a question, then he or she has justified the decision on a legal norm. For example, if a litigant on appeal argued that she was entitled to a trial even though the underlying facts were undisputed and she had lost on summary judgment, the appellate court would need to consult the rules of civil procedure to determine whether she was in fact entitled to a trial. This is a classic easy case and legal realists and formalist agree: a legal norm disposes of this case.

Many cases are similar: the rules are clear and their application straightforward. But there are a lot of cases that are hard cases where the legal rules aren't clear and the application of the rules isn't straightforward. To cite to a common example of a hard case: a city has made it illegal to drive on the grass in a park. If you drive a car on the grass, you've violated the rule. This is a simple case. But what about riding a motor scooter? A skateboard? At the margin, it's not clear. In those cases, you can't cite to some legal authority to resolve the question. There are arguments on both sides. Thus, you have to resort to extra-legal sources. Posner, for example, might decide that you should come to the result that encourages economic efficiency. Marshall might decide to do what he thinks would encourage a just result. Etc. Whatever you use to decide the case is going to be extra-judicial. That's legal realism.

Legal realism, in part, describes the way the law is. Even if we wanted the law to be entirely determinate -- as a formalist believes* -- it simply isn't. There are always going to be hard cases that you can't point to a legal rule to resolve the debate. Thus, you must point to some rule outside of the law to support your decision. Simply thinking the law is determinate doesn't make it so. So even if the rule of law and legal realism are not compatible, that doesn't mean legal realism is wrong. It's simply describing the law as it is.

(*As an aside, some formalists believe the law is nearly always determinate. It's not clear, at least to me, that it is coherent to be a formalist and also admit that the law is sometimes indeterminate. Scalia, for example, is of this view.)
1.2.2007 5:39pm
juris_imprudent (mail):

To use one oft-cited example: whether the constitution allowed states to ban homosexual sodomy might have been legally indeterminate.

What then to make of the 10th Amdt? Or, did I miss some part of the Constitution or Bill of Rights that declared that States were not allowed this power?

Certainly I don't think Texas should have had that power - but that is a matter for the Texas constitution, given that the U.S. Constitution is clearly silent on the subject.
1.2.2007 5:53pm
Brett Bellmore:
I suspect that this has little significance beyond the fact that legal realists have noticed that legal realism has a really bad public reputation outside the legal community, while formalism has a sort of default "well, yeah, what else is a judge supposed to do?" public approval.

So they're going to try the same "invasion of the body snatchers" job on "formalism" that they did on "liberalism" so long ago. We may look forward a couple of decades from now to real legal formalists having to refer to themselves as "classical formalists", or maybe "formaltarians", in order to distinguish themselves from legal realists who've usurped the title.
1.2.2007 6:04pm
abean:

Many cases are similar: the rules are clear and their application straightforward. But there are a lot of cases that are hard cases where the legal rules aren't clear and the application of the rules isn't straightforward. To cite to a common example of a hard case: a city has made it illegal to drive on the grass in a park.

I think you're not playing fair. Of course there appears to be grey area... but the traditional view is that a judge will attempt first to apply an existing rule, and only failing that then attempt to combine old rules in a manner _consistent_ with the existing body of law.

Formalism is about favoring consistency--usually paired with the assumption that the legislature will periodically recodify an area of law to clean up whatever developed incrementally. Sure, we might debate which result is more consistent than another, but the terms of the debate are still about consistency not righteousness.

Realism is about favoring the 'right' result, right now even if that result impairs the consistency of the existing order of the laws.
1.2.2007 6:28pm
Kovarsky (mail):
Bobbie,

I'm still not clear what the distinction between "legal" and "non-legal" norms is. I understand what legal realism is; I used the "my understanding of..." construction for colloquial simplicity. I don't think legal realists would (as you seem to do) distinguish between "legal" and "non-legal" norms. What you're identifying with the "no vehicles in the park" example, or the seeing-eye dog in the park with a pet-ban example, is not the need for a different "type" of norm just because the interpretation is unclear.

These are all just different types of interpretive norms. You seem to be arguing (correct me if I'm wrong) that legal and non-legal norms are distinguished by reference to whether the interpreter can resort to a controlling text to solve the dispute satisfactorily. But that doesn't make any sense. Very few, if any, judges expressly claim to resolve a question without reference to a controlling textual source of law, whether it be the constitution, a statute, common law, or some other indicia of meaning. In fact, realism's major argument is that when judges conduct these sorts of interpretive exercises, they are just superficial camouflage for a value judgment.

In other words, reasoning to a judgment is not "non-legal" just because the reasoning itself is more tenuous.

Also, what does this mean:

Simply thinking the law is determinate doesn't make it so. So even if the rule of law and legal realism are not compatible, that doesn't mean legal realism is wrong. It's simply describing the law as it is.
1.2.2007 6:33pm
Justin Levine:
Brian's book should not confine the topic just to the battles in the U.S., the biggest problem in this arena is the use of so-called "international law" to shape issues both inside and outside of America.
1.2.2007 6:37pm
Kovarsky (mail):
abean:

Formalism is about favoring consistency--usually paired with the assumption that the legislature will periodically recodify an area of law to clean up whatever developed incrementally. Sure, we might debate which result is more consistent than another, but the terms of the debate are still about consistency not righteousness.

Realism is about favoring the 'right' result, right now even if that result impairs the consistency of the existing order of the laws.


that's not fair either. do the words "man" and "he" in the constitution mean that the operative text applies/involves only men? you've got to have some threshold of absurdity, and once you admit to the need for that threshold, then you're bogged down in the sordid exercise of figuring out what that threshold should be.
1.2.2007 6:38pm
abean:
do the words "man" and "he" in the constitution mean that the operative text applies/involves only men?

bad example. I argue that the use of man to mean man or women is a consistent reading. Reason: the etymology is quite clear, 'man' refers to both genders. In old English males used to have their own, independent designation (wer) but that was lost.

again, we can debate whether this position is consistent, but that debate is a formalist one by nature.

Again the critical distinction is that I do not assert that the constitution should be gender neutral but that the language is gender neutral.
1.2.2007 7:05pm
Kovarsky (mail):
really, i think the evidence is pretty clear that when the framers said "man" they meant "male," and not in the gender neutral sense that "man" might appear in "man is created equal." your citation to old english is nice academic showmanship, and also by the way has absolutley nothing to do with what the framers meant when they wrote:

Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

the language is not "gender neutral" under any fair reading of it, whatever you might know about old english, a dialect with little to know linguistic influence on the framing text. your version of formalism denies the absurdity doctrine, which is fine - many quite reputable scholars (john manning) have made the case that backslapping the absurdity doctrine is fine, but that is indeed what you are doing. how are you not having your cake and eating it too? i don't have too much of a problem with the "soft" formalistic argument that applies to statutory text, because there's a means of revision and there now exist certain background assumptions against which legislators, you know, legislate. ya can't fairly say the same thing about the constitution and its framers though. formalism as applied to constitutional interpretation is far more problematic.
1.2.2007 7:36pm
Tom R:
I'm going to offer a reason why retired US officials should not continuing their old title ("Senator", "Judge", or even "The Honourable"), a reason that may seem to come from left field: that it's a violation of the spirit of the Titles of Nobility Clause and the Republican Guaranty Clause.

"violation of the spirit" = that a court should hold, *if* a proper case or controversy arose, that the Constitution had been breached, although in practice it's unlikely any likely plaintiff would be able to show standing, justiciability, etc, to get into court.

But still, to attach a title to a person for life - not merely use it to refer to that person while s/he's actually holding and performing that office - is as contrary to the intent and tenor of the US Constitution as if the President delivered a three-word State of the Union Address to Congress.
1.2.2007 8:04pm
Tom R:
Oops, sorry, posted the above in wrong thread - delete at will.
1.2.2007 8:06pm
abean:

i don't have too much of a problem with the "soft" formalistic argument that applies to statutory text, because there's a means of revision and there now exist certain background assumptions against which legislators, you know, legislate. ya can't fairly say the same thing about the constitution and its framers though. formalism as applied to constitutional interpretation is far more problematic.


The constitution does have an amendment process. And there is an argument that formalism is more, not less important in constitutional matters. That said, there are also easy ways out of ambiguous situations:
-- Cite the political questions doctrine
-- Handle the case narrowly after balancing the weight and number of citations supporting each decision; advise congress of your concerns. Though this last point is more a job for the legal academy, ex-jurists, et al to devise a solution to the problem that does not require declaring untethered principles with constitutional weight. In this regard, a narrow ruling is a holding action until the political arms of government have a chance to act.
1.2.2007 8:20pm
Lev:
I could be wrong, but this sounds like Bork, "Slouching Towards Gomorrah."
1.2.2007 10:23pm
Sebastian Holsclaw (mail):
Arguably, liberal academic scholars are likely to rediscover the charms of formalism as they realize that their fellows don't control the judiciary. Like deficit reduction, complaints about gerrymandering, and thoughts about the importance of the filibuster, such ideas take hold most firmly when you believe you might actually be in the minority.

I'm not arguing against them, mind you. Merely noting when such things tend to be important to the important members of each side.
1.3.2007 12:15pm
Robert Schwartz (mail):
For this reason: "My name is Brian Tamanaha and I am a legal formalist." (Yuck, that was not an easy statement to make—try it and see.)


He is correct. I tried it, and no matter how hard I tried, I could not pronounce Tamanaha.

Tanana, Towanda, but not Tamanaha.
1.4.2007 11:15pm