Posted by: captainfalcon | May 13, 2010

Tamanaha on Formalism and Realism

In Beyond the Formalist-Realist Divide Brian Tamanaha aims to refute this version of the history of American jurisprudence:

From the 1870s through the 1920s – the heyday of legal formalism – lawyers and judges saw law as autonomous, comprehensive, logically ordered, and determinate and believed that judges engaged in pure mechanical deduction from this body of law to produce single correct outcomes. In the 1920s and 1930s, building upon the insights of Oliver Wendell Holmes, Roscoe Pound, and Benjamin Cardozo, the legal realists discredited legal formalism, demonstrating that the law is filled with gaps and contradictions, that the law is indeterminate, that there are exceptions for almost every legal rule or principle, and that legal principles and precedents can support different results (Tamanaha, 1).

Tamanaha thinks this story both false and pernicious. False, because the sense among judges, lawyers and legal scholars even during the purported heyday of formalism was that the law is full of gaps and contradictions, which give judges discretion to “make law” (i.e. to come to decisions on the basis of extra-legal reasons). Of course, these jurists also acknowledged that judging was a rule-bound activity. While judges had discretion to make law, that discretion came with two different types of limits. First, judges only had discretion to make law in some cases; second, even in those cases where they had discretion to make law, it was a bounded discretion.

Perhaps, then, the formalist-realist divide is between, not believers in, and skeptics of, “Mechanical Deduction” from a consistent body of determinate law, but believers in, and skeptics of, the power of legal rules to sometimes (or often) constrain? Not so, says Tamanaha:

Contrary to their image as skeptics, legal realists viewed judging in…balanced terms. They did not assert that judges routinely manipulate the law to produce desired outcomes…Karl Llewellyn, realist extraordinaire, devoted a 500-page book to refuting the “Law School Skeptic,” arguing at length that judicial decisions are highly predictable and determined mainly by legal factors (Tamanaha, 6-7).

American jurists from the 1870s (or even earlier) on accepted a form of balanced realism, according to which the practice of law was largely, but not entirely, rule-bound. The formalist-realist divide is thus a fiction. But it is a pernicious fiction. “Quantitative studies of judging conducted by political scientists are booming, but the orientation of the field has been badly warped by the story about the formalists and the realist. Taking up the banner of legal realism, the expressed aim of the field has been to expose legal formalism as a fraud” (Tamanaha, 7). Thus, findings that judges exercise some political discretion are interpreted as evidence that judging is political. This interpretation makes sense when the contrast is legal formalism, but not when it is balanced realism.

The story about formalists and realists has had a pernicious effect not only on quantitative studies of judging, but also, Tamanaha speculates, on the practice of law. It has had this effect both through its effect on the quantitative studies and independent of it. “Balanced realism is descriptively accurate only as long as a balance exists between the skepticism-inducing aspects of judging and the rule-bound aspects. In recent decades, however, skepticism about judging has increased within the legal culture as well as in the public consciousness, fueled by the politicization of federal judicial appointments and state judicial elections. Excessive skepticism about judging harbors the potential to disrupt the balance” (Tamanaha, 9; emphasis added). Politicization, then, could both cause widespread acceptance of (“unbalanced”) legal realism, and be an effect of it. (If judging is a political activity, then the ideology of judges is of paramount importance.)

I’ve only read the first two chapters of Tamanaha’s book, which are concerned to confute the fiction that jurists in the “heyday of formalism” believed the law was a consistent, determinate body of rules (one chapter) from which right answers could be mechanically deduced (the other). Tamanaha does a fine job confuting this, but it seems possible he’s constructed a straw-man. There is another version of the story about the formalist-realist divide, which Tamanaha hasn’t (yet) addressed and for which there is some evidence, which threatens both to make sense of the approach to quantitative studies of judging Tamanaha criticizes and vindicate the politicization of judicial appointments he laments.

This version says that the formalists regarded mechanical deduction from a determinate body of rules as an attainable ideal, whereas the realists thought of it as pie-in-the-sky. Thus, while the formalists acknowledged that actual judging involved judicial legislation, they didn’t think this an inescapable state of affairs. This would explain why “[c]oncerns about rampant legal uncertainty provided fuel for the debate over codification that began early in the nineteenth century and continued into the twentieth century” (Tamanaha, 35).

Codification – the replacement of common law with comprehensive legislation – was supposed to correct “The uncertainty of our law, its confusion, its startling bulkiness, redundancy and prolixity, increased annually by some 20,000 new statutes and thousands of new reorted cases, [which] make[s] our law today the most intolerable in the world and perhaps the worst ever known to human history – all because its form and lack of uniformity are so objectionable” (Tamanaha, 36; quoting Judge John Dillon). Tamanaha gives Dillon’s observations on the state of American law in the 1886 as an example of anti-formalism that antedates the supposed demise of the formalist age. If formalism is a view of what judges do, then Tamanaha’s example holds; if it is a view about what judges can and should achieve, though, then the example actually makes a point opposite from what Tamanaha intends.

Brian Leiter’s sympathetic reconstruction of American Legal Realism suggests that the legal realists were concerned to confute not (or not just) the view that judging was mechanical deduction from determinate rules, but also that judging could be thus. If the realists focused on demonstrating the inescapability of judicial law-making, then that is evidence their opponents held the contrary view (and, thus, that the formalist-realist divide concerned the inevitability, as opposed to actuality, of legal indeterminacy and non-mechanical judging).

Leiter identifies two branches of legal realism, which he dubs the “Sociological Wing” and the “Idiosyncrasy Wing.” The Sociological Wing held that “various ‘social’ forces must operate upon judges to force them to respond to facts in similar, and predictable, ways.” The Idiosyncrasy Wing maintained that “what determines the judge’s response to the facts of a particular case are idiosyncratic facts about the psychology or personality of that individual judge” (Leiter, 9).

Unlike Idiosyncratic Legal Realism, Sociological Legal Realism acknowledged the possibility of predicting judicial decisions even where the law is indeterminate (on the basis of sociological facts about the judiciary). Thus, “the Sociological Wing Realists could hold out the hope of crafting legal rules that really would ‘guide’ decision, or at least accurately describe the course of decision actually realized by the courts.” If the law consisted in “general norms, reflecting the norms that judges actually employ anyway” instead of being “pitched at a level of generality that bore no relation to the fact-specific ways in which courts actually decided cases” then it would at least serve more of a predictive function (Leiter, 14).

Does the fact that some legal realists, like some (alleged) formalists, saw value in codification disconfirm my suggestion that the formalist-realist divide was a divide over the inevitability of judicial law-making? Not at all, because realists saw codification as having a different point than that of the alleged formalists (like Dillon). Dillon – my hypothesis runs – hoped that codification would usher in a world of mechanical jurisprudence from a determinate body of law. For Dillon, codification would introduce a utopia of invariably rule-guided judging. The sociological realists, by contrast, never expected judges to be consistently guided by the code they introduced. They hoped, instead, that the code would describe what the judiciary usually did for extra-legal reasons; it would thus improve the citizenry’s ability to predict the outcome of cases, and to modify their behavior accordingly.

Can the claim that Tamanaha mischaracterizes what’s at issue between the formalists and the realists make sense of the orientation of quantitative studies of judging? Can the success of (real) realism explain the politicization of judging? I think the answer to both is yes. First, quantitative studies of judging showing that over long periods of time – periods of time beset by episodes of attempted reform – judging remains as political as it ever was cast doubt on the proposition that judging could be a mechanical enterprise. It thus serves to confute formalism and confirm realism. And, of course, if judging can’t be a mechanical enterprise then there’s no point even aspiring to appoint apolitical judges – introducing ideologically congenial politics into the law is the best you can do.

Construing the issue between formalists and realists as an issue over the possibility of mechanical jurisprudence and determinate law thus (a) has some historical support, (b) makes sense of (and vindicates) the current approach to quantitative studies of judging and (c) explains the politicization of judging as predicated on a (arguably sober) assessment of reality, as opposed to a mythologized picture of jurisprudential history.

(c), of course, is anathema to some law professors. On the Legal Theory Blog, Lawrence Solum – who blurbed Tamanaha’s book – recently restated his formalist creed:

It is surely true that many American judges eschew neutrality and that the real basis of their decisions on their “ideology”–sometimes, even on overtly partisan grounds.  And it is also surely true that judges are limited human creatures–and as a consequence good faith efforts at neutrality can be subverted by powerful biases.  And it is also true that the sources of law (legal texts such as constitutions, statutes, and judicial opinions) frequently underdetermine outcomes.

But none of this implies that legal realism is inevitable or that judges must “make the law”… Not all of us believe that “no judge is neutral.”  Not all of us believe that judges should make the law rather than apply or discover it.  Not all of us are legal realists now.

Which is further evidence to my hypothesis, viz. what’s at issue now is what’s always been at issue; in Solum’s words, whether it is “inevitable that judges must ‘make the law’,” and whether it is inevitable that “no judge is neutral.” Or, to put it in the language of yesteryear, whether a “mechanical jurisprudence” based in “determinate law” is an attainable ideal.

Seems a good time, now that I’ve excoriated it, to read Tamanaha’s book.

Update: I added an ellipsis I neglected to the excerpt from Legal Theory Blog.



  1. Thanks for your smart commentary on my book. The problem with your analysis is that Dillon (and Cooley, etc.) thought that the openness of law was inevitable–irreducible. I know this because they said it many times (and you should have come across these quotes in the book).

    There is a difference between asserting that law should be made more coherent (and it was a mess at the time) and advocating the “deductive, mechanical” judging ideal. Your commentary conflates their advocacy of the former with the latter. If you actually read what they wrote, you will see that is not the case. Cooley, in particular, wrote that uncertainty is inevitable in law (again I quote this in the text).


  2. […] Reply to Professor Tamanaha Professor Tamanaha did me the honor of commenting on my post about his book. In my post I float the possibility that Beyond the Formalist-Realist Divide […]

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