Legal Commentary

Tamanaha, ?Beyond the Formalist-Realist Divide?

By Orin Kerr

I recently finished Brian Tamanaha?s new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging. I thought it was excellent: well-written, provocative, and engaging. If you?re interested in jurisprudence, this book is a must-read.

The gist of the argument is that the common story about the legal realists and the legal formalists is just bunk. For those not familiar with this area, the common story is that until the 20th Century, lots of lawyers and legal theorists were legal formalists who naively thought law was entirely mechanical. Then, in the 20th century, the legal realists came around and revealed for the first time that law was human and often indeterminate. Tamanaha shows that the realists? claims about what the formalists thought were totally wrong, and that there wasn?t any real difference between how so-called realists and so-called formalists thought about the law. Rather, he suggests, progressive legal reformers in the 1930s invented the bogeyman of formalism to try to discredit the status quo and facilitate legal reforms of the day.

I particularly liked the book because it takes on a narrow but important point, sticks to that point, and is relentless and unyielding within it. Tamanaha is trying to debunk one specific point, and he doesn?t let himself get distracted by related topics or the need to offer his own general theory. I tend to think that approach has the most impact in legal debates: Following this book, it will be hard to make the usual claims about the realists and the formalists without dealing with Tamanaha?s counterstory.

Full post as published by The Volokh Conspiracy on December 31, 2009 (boomark / email).