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Beyond the Formalist-Realist Divide: The Role of Politics in Judging

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Synopses & Reviews

Publisher Comments:

According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

Book News Annotation:

Tamanaha (law, Washington U.) begins by reviewing the story so far: formalism reigned from the 1870s to the 1920s, when judges were thought merely to apply universal law in a mechanical way to particular cases; then the realists ascended, and law was considered unfinished in its pure form so that judges had to clarify and complete it through specific cases. Then he leads legal and political scholars and practitioners, as well as citizens and other interested parties, out of the double bind, hacking through a thicket of interlocking misinterpretations and confusions that are taken for the reality that they in fact hide. Annotation ©2010 Book News, Inc., Portland, OR (booknews.com)

Synopsis:

"Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign

"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law

"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals

Synopsis:

According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

About the Author

Brian Z. Tamanaha is professor of law at Washington University School of Law. His books include "On the Rule of Law and Law as a Means to an End".

Table of Contents

Acknowledgments ix

CHAPTER 1: Introduction 1

PART ONE: THE LEGAL FORMALISTS

CHAPTER 2: The Myth about Beliefs in the Common Law 13

CHAPTER 3: The Myth about "Mechanical Jurisprudence" 27

CHAPTER 4: The Holes in the Story about Legal Formalism 44

PART TWO: The Legal Realists

CHAPTER 5: Realism before the Legal Realists 67

CHAPTER 6: A Reconstruction of Legal Realism 91

PART THREE: STUDIES OF JUDGING

CHAPTER 7: The Slant in the "Judicial Politics" Field 111

CHAPTER 8: What Quantitative Studies of Judging Have Found 132

PART FOUR: LEGAL THEORY

CHAPTER 9: The Emptiness of "Formalism" in Legal Theory 159

CHAPTER 10: Beyond the Formalist-Realist Divide 181

Afterword 200

Notes 203

Index 251

Product Details

ISBN:
9780691142807
Author:
Tamanaha, Brian Z.
Publisher:
Princeton University Press
Location:
Princeton
Subject:
Judicial process -- United States.
Subject:
Judges -- United States.
Subject:
Civil Procedure
Subject:
Jurisprudence
Subject:
Judicial power
Subject:
Legal History
Subject:
Law
Subject:
Political Science and International Relations
Subject:
Law : General
Copyright:
Edition Description:
Trade paper
Publication Date:
December 2009
Binding:
TRADE PAPER
Grade Level:
College/higher education:
Language:
English
Pages:
264
Dimensions:
9 x 6 in 13 oz

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Related Subjects

History and Social Science » Economics » General
History and Social Science » Law » Constitutional Law
History and Social Science » Law » General
History and Social Science » Law » Judicial Power
History and Social Science » Politics » General
Science and Mathematics » Nature Studies » General

Beyond the Formalist-Realist Divide: The Role of Politics in Judging New Trade Paper
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Product details 264 pages Princeton University Press - English 9780691142807 Reviews:
"Synopsis" by , "Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign

"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law

"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals

"Synopsis" by , According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

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