Judging and Jurisprudence in the USA B.Z. Tamanaha , Beyond the Formalist‐Realist Divide: The Role of Politics in Judging, Princeton: Princeton University Press, 2010, 252 pp, pb £16.95.

AuthorRichard Mullender
Publication Date01 Sep 2012
Judging and Jurisprudence in the USA
Richard Mullender*
B.Z. Tamanaha,Beyond the Formalist-Realist Divide: The Role of Politics in
Judging, Princeton: Princeton University Press, 2010, 252 pp,pb £16.95.
Judging has long generated acute controversy and excited wide (and not merely
professional or academic) interest in the USA.This is unsurprising.The practice
of constitutional judicial review means that judges play a prominent role in the
life of the nation (by, for example, specifying the limits of free expression).1
Elaboration (at state level) of the common law encourages interest in the way
judges go about their business.2And US law schools foster (through, inter alia,
the Socratic method) awareness of the argumentative methods that issue in bold
doctrinal developments.3These features of Amer ica’s politico-legal form of life
go some way towards explaining a long-lived debate on the nature of the
judicial role that shows no sign of stopping and that has often yielded fruitful
results. We see these results in, for example, Ronald Dworkin’s writing on
principles as considerations relevant to the work of judges.4Likewise, we see
them in Richard Posner’s account of efficiency as a concern that has informed
judicial development of, inter alia, the common law.5In more particular con-
texts, we see valuable contributions to debate on judging: for example, reflec-
tion on the way in which more or less intense standards of judicial review may
compromise or provide a valuable adjunct to the democratic process.6This is
the context in which Brian Tamanaha (in Beyond the Formalist-Realist Divide)
examines a widely influential body of jurisprudential thought on judging.7The
analyses on which he focuses are those of scholars who either were Amer ican
Realists or who were closely associated with realism (67).This body of thought
was, on one account, ‘the major intellectual event in 20th century American
legal practice and scholarship’.8
*Newcastle Law School.Tom Bennett, Emilia Mickiewicz, Colin Murray, Patrick O’Callaghan, Ole
Pedersen, andAshley Wilton each offered helpful criticisms of earlier drafts.
1 See, for example, Brandenburg vOhio 395 US 444 (1969), 447.
2 P. S.Atiyah and R. S. Summers, Form and Substance in Anglo-American Law:A Comparative Study of
Legal Reasoning, Legal Theory, and Legal Institutions (Oxford: Clarendon Press, 1987) 137.
3 See P. Areeda,‘The Socratic Method (SM) (Lecture at Puget Sound,1/3/90)’ (1996) 109 Harv LR
4 R. Dworkin, Taking Rights Seriously (London: Duckworth,1977) chs 2–4.
5 R. A Posner,‘The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudi-
cation’ (1980) 8 Hofstra LR 487.
6 N. Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press,1995) 286–293 (on the
writings of Alexander Bickel and John Hart Ely).
7 B. Z. Tamanaha, Beyond the Formalist-Realist Divide: the Role of Politics in Judging (Princeton:
Princeton UP, 2010) (BtF-RD).
8 B. Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal
Philosophy (Oxford: OUP, 2007) 1.
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(5) MLR 914–935
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Tamanaha scrutinises this ‘event’with a keen, critical, and constructive eye. He
argues that some of those who featured prominently in it made contributions to
debate on the subject of judging that are of little value.However,he finds within
realist thought much on judging that merits close attention. For this reason, he
engages in a ‘reconstruction’ of this body of thought (chs 6 and 10). His aim
in doing so is to stake out a descriptively accurate and normatively appealing
position on judging (to which he gives the name ‘balanced realism’).This article
seeks to build on the foundations laid by Tamamaha and those on whom he
draws. To this end, it explores the idea that legal systems establish fields of
interpretative possibility within which judges may specify a range of politically
controversial norms. As well as placing emphasis on the systemic context within
which judges do their work, this ar ticle also explores relevant contextual con-
siderations (most obviously the actually existing,or empir ical,community within
which law operates). Moreover, it considers imagination in its legal, sociological,
and moral forms, with the aim of pinning down practical impulses in the body
of thought that Tamanaha surveys and seeks to reconstruct. Finally, it aims to
explain why talk of a formalist-realist divide has gained wide currency, and to
gain analytic purchase on Tamanaha’s approach to scholarship by drawing on
John Keats’s account of negative capability.
The formalist-realist divide
Tamanaha argues that academics have for decades accepted the claim that, from
around 1870 until 1920, an unsophisticated view of judging was widely influ-
ential in the USA (1–3). On the view he describes, judging is a mechanical
process, for it involves subsuming facts under determinate r ules and reaching the
conclusion that inexorably follows (49).9This is an approach to judging to which
the labels ‘formalism’ and ‘mechanical jurisprudence’ apply (45–48 and 161).10
Tamanaha notes that more recent and ‘elaborate’accounts of formalism have lent
judging a distinctly mechanical appearance. Tamanaha illustrates this point by
reference to the writings of Frederick Schauer. Schauer identifies formalist judges
as concerned with the application of rules understood as independent, authori-
tative grounds for decision (164).11 On this view, rules blind those who apply
them to the context in which they do their work and to the law’s purposes.
Schauer also declares that formalism, when understood in this way,‘merges into
ruleness and both are inextricably intertwined with literalism’. By literalism he
means ‘the willingness to make decisions according to the literal meaning of
9 cf G. E. White, The American JudicialTradition:Profiles of Leading American Judges (Oxford: OUP, 3rd
ed, 2007) 10 (arguing that a mechanical understanding of judging had wide influence in the
colonies prior to the American Revolution).
10 While strongly associated with the body of thought according to which law’s operations are
mechanical, Tamanaha notes that ‘for malism’ is ‘an old ter m with negative connotations’. He
identifies them as arising from, among other things,the injustices that resulted when the ‘forms of
action’ became entrenched in English common law in the twelfth and thirteenth centuries.
11 See also F. Schauer, ‘Formalism’ (1988) 97Yale LJ 509, 534–535.
Richard Mullender
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 915
(2012) 75(5) MLR 914–935

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