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The Realism of The "Formalist" Age:
Brian Tamanaha has just posted a really terrific article, The Realism of the "Formalist" Age. The article very persuasively makes a point that I've pondered here before, namely that the basic insights of legal realism were nothing new when the realists claimed to "discover" them. As Tamanaha shows, many perspectives on law that today are considered "realist" were part of the basic understanding of law during what is now characterized as the "formalist" era.

  Here's the abstract:
It is almost a truism in contemporary legal theory and legal history that the 1870s through the 1920s was the age of "formalism." Judges in this period applied logical methods, relied upon conceptual analysis, and rendered decisions in a rule-bound fashion that paid little heed to social consequences. The common law was characterized as comprehensive, gapless, and logically consistent, with a right answer for every case; law was understood to be a science. A more realistic view of law was ushered in by the Legal Realists, who built upon the writings of Oliver Wendell Holmes and Roscoe Pound to destroy formalistic thought. The Realists argued that the law is substantially indeterminate: there are gaps and inconsistencies in the law, exceptions can be found for most rules or principles, precedent often can be enlisted to support opposite outcomes. They argued that judicial decisions should not be based upon abstract conceptual analysis; rather, law is a means to social ends. A number of Realists argued that judicial decisions are the product of subjective predilections of judges, or that judges come to the result first, then structure their legal analysis to rationalize the result.

This article argues that the standard account of the formalist period is fundamentally incorrect. Quoting and citing many speeches and publications, it demonstrates that a consummately realistic view of law and judicial decision making was expressed throughout the so-called formalist period. Many of these realistic statements - mentioning the uncertainty of law, the availability of precedents on all sides, and the understanding that judges' subjective views influence their legal decisions - were uttered by judges, professors, and leaders of the bar. The article shows how the image of formalism was constructed by Roscoe Pound, Karl Llewellyn, and Grant Gilmore in a manner that systematically excluded this large body of realistic discourse, thereby creating a distorted portrayal of the period. Moreover, the article argues that our perception of the Legal Realists (and Holmes) as bold mavericks is erroneous. The Realists were merely the latest episode in a constant stream of skeptical observations about law and judging that extends back many decades.

The objective of this article, beyond correcting our misimpression of these important periods in our legal history, is to break the hold of the formalist-realist antithesis that structures and constrains contemporary views of judicial decision making.
  Highly recommended. (For Brian's blog post that touches on some of the same themes, see here.)
Erasmus (mail):
For those of you interested in Legal Realism (and not the strawman often created by conservatives), you should read Dr. Leiter's recently published Essays on American Legal Realism and Naturalism in Legal Philosophy.

Odd that if the "insights" of legal realism were well known and accepted before Legal Realists started to write, how it came to be that we now have members of the judiciary who are in fact formalists -- or, at the least, deny the tenets of legal realism. (Think no further than John Roberts recent absurd statement that being a judge is just like being an umpire.)
5.8.2007 11:14pm
OrinKerr:
Erasmus,

Who are the Justices that "deny the tenets of legal realism"? Justice Scalia has written extensively about his pragmatic reasons for embracing formalism. John Roberts was probably the leading Supreme Court advocate of his generation, a master at counting to five votes and crafting an argument to get there. No one could do that without a very sophisticated sense of how judges actually decide cases. I think you missed that Roberts' statement about umpires was a normative view, not a descriptive one; his point was about the desirability of the rule of law, which does not seem inconsistent with realism.
5.8.2007 11:22pm
Erasmus (mail):
Orin, I understand that Roberts analogy was supposed to be normative, not descriptive. I think believing that you can choose between formalism and realism is his mistake. It's not a matter of "just trying real hard." If Legal Realists are right -- the law in some class of cases is legally indeterminate, which is to say the law does not require one and only one outcome in some class of cases -- then the formalists are wrong on their normative claims. Or, at least, you can't do what formalist want you to do.

Lets say you're a judge. What we all agree are the relevant legal materials justifies two different results in a case. No matter how conscientious the judge, she cannot do what formalist say she ought to do. She must use non-legal reasons -- whether they be moral or socio-economic or whatever -- to resolve the case. And in cases where the law is legally indeterminate, that's exactly what she must do to resolve the case. That's true whether she wants to do it or not or whether she realizes she's relying on non-legal reasons or not.

Realists aren't making the claim that judges don't apply "the law" (or, more accurately, don't solely rely on legal reasoning) because they're stupid, dishonest, or irrational. Instead, even under ideal circumstances, they must (in some class of cases) resolve the case relying on non-legal reasons.

And I agree that Legal Realism is not inconsistent with the Rule of Law. Indeed, I believe Legal Realism, properly understood, helps to strengthen the Rule of Law.
5.8.2007 11:43pm
OrinKerr:
Erasmus,

I haven't ever met anyone who claims that there are zero cases that are legally indeterminate. Is that your understanding of what a formalist is -- someone who thinks that the law is always clear? If so, can you name some formalists?
5.8.2007 11:55pm
frankcross (mail):
Maybe this is a semantic problem, but how is legal realism (meaning that the outcome of the case is a function of the identity of the judge) consistent with the rule of law or strengthening of it?

I always envisioned the rule of law as meaning that the identity of the judge shouldn't drive the outcome of the case.
5.8.2007 11:56pm
Erasmus (mail):
Orin, I'm not sure why it matters, but there are indeed legal formalists who believe that the law is legally determinate in all cases -- for example, Dworkin. (As an aside, you seem to equivocate the law being "clear" with the law being legally determinate. Those are very different things as the law can be not clear, but still be legally determinate.) I do think legal formalists think the law is legally determinate in nearly all (although not all) cases. I believe Scalia takes the view that the law is nearly always legally determinate, but cases do exist where the legally indeterminate. I think, although do not know, that Justice Thomas believes the law is always legally determinate. In my experience, most conservatives think the law is always legally determinate and relying on non-legal reasons to reach a result is necessarily lawless. What does the answer to your question matter?

Frank, one commonly used example to show how Legal Realism strengthens the rule of law is the UCC. When Llewellyn wrote the UCC, he codified the norms of commercial practice because he thought judges were already trying to do uphold the norms of commercial practice even though those weren't necessarily the formal rules laid out in books. He wanted to tell judges to do explicitly what they were already doing so they could do it openly. The law then became more predictable, and business people could better rely on the law to uphold their deals.
5.9.2007 12:12am
mainfloorguy:
Prof. Kerr:

One of my professors, a devout legal realist, told our class the following. On one occasion after having lunch together, Learned Hand parted ways with Oliver Wendell Holmes. Learned Hand said "Do justice." Oliver Wendell Holmes replied, "That's not what I'm here to do."
5.9.2007 12:51am
OrinKerr:
Mainfloorguy,

Yes, it's a classic story. I'm curious, though -- what did your professor think it had to do with realism?
5.9.2007 1:31am
Gino:
What an interesting topic. I'll never forget when I discovered formalism in law school. The class was contracts. The case was about a woman who was invited by a man, maybe her brother in law, to come up to where he lived and he would take care of her. She went up there but he did not take care of her. Did they have a contract? Everything we studied up to that point would have led us to conclude that no, there was no contract, and thus no liability on the part of the man. That's when we were introduced to the concept of detrimental reliance. With detrimental reliance, you don't need a contract to be held liable. I found the theory to be a very ends-justifies-the-means way of thinking, and thereby recognized the value of formalism. Needless to say, every class after that seemed to be an example, one case after the other, of where a sensible rule was discarded for a favorable outcome. Ah, good times ... good times.
5.9.2007 10:10am
yls09:
I had the same experience as Gino. With hand-picked cases showing the tragic consequences of rigid formalism in a first term course in which we have little understanding of the scope and frequency of modern contracts cases, how could one embrace such a cold-hearted approach when realism allows the flexibility to reach the correct result?
5.9.2007 11:40am
OrinKerr:
YLS09,

Are you suggesting that some casebook authors actually pick cases to try to indoctrinate impressionable law students? Well, well, well . . .
5.9.2007 12:45pm
mainfloorguy:
Prof. Kerr,

It was a class on Agency Law. It is probably the only class available on common law for upper level students, at my school. My professor never came out and told us what the story/parable meant. Therefore, the following interpretation is my take on it.

Agency deals with the "should-ness" of the law. In other classes, at least from a student's perspective, the didactic frequently involves trying to understand the "hard lines" drawn by the law. But in this area the common law did not create hard lines. Instead, it involved squeezing individual facts in order to accomplish the goal that makes the most sense.

Agency, of course, is not the only area where fact squeezing takes place. For example, consider the facts as presented by the Supreme Court in Bostick and Drayton. My personal reaction to their presentation of the facts is a bit cynical. Having said that regarding the facts, these judicial approaches and outcomes make sense for those cases because the test involves the "totality of facts." Additionally, I understand that Criminal Procedure is often a policy balance between individual rights on the one hand and enabling the police to do their job and protect the public on the other hand. I don't mean to digress. Rather, my intention by mentioning this is to attempt to identify what I think might be "common ground" where I have seen fact squeezing at play.

The link between the examples from Constitutional Law above and Agency is that Agency also requires analysis of the "totality of facts." With that as a segue back to Agency Law and the "parable," an example from my class is the broad topic of vicarious liability between multiple private parties. Vicarious liability is not a function of "formalism," as contrasted (generally) with contract or tort law. In cases where a person has been seriously injured, vicarious liability makes sense as a legal way to make the injured person whole. Agency or servancy gets the injured person to the deep pocket where the "hard lines" of the law of contract or tort fail simply fail.

To answer your question, it seems to me that when Learned Hand said, "Do Justice" he was referring to the "should-ness of the law" as I have tried to describe above. Learned Hand might have meant "use the law as a tool" to get to the result that really makes sense. When Oliver Wendell Holmes responded, "That's not what I'm here to do," it seems to me that he meant that the law is not subject to his personal subjective beliefs.
5.9.2007 5:05pm
mainfloorguy:
Prof. Kerr:

If you have the chance to look at <u>Martin v. Heinold Commodities</u>, 510 N.E.2d 840 (Ill. 1987) the majority is "Oliver Wendell Holmes" and the dissent is "Learned Hand" (metaphorically speaking).
5.10.2007 7:30pm