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  • Brian Leiter (a1)

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.

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1. Such theories can be cast in descriptive or normative terms, but I focus mostly on the descriptive version here. I turn later to what we might call formalist views of rule application associated in particular with Frederick Schauer.

2. Cesare Beccaria, Interpretation of the Law, in Of Crimes and Punishments § 4 (1764).

3. In some civil-law jurisdictions, the opinions are often written precisely in the form of vulgar formalism!

4. See, e.g., Ronald Dworkin, Hard Cases, in Taking Rights Seriously (1977); and Dworkin, Law's Empire ch. 6 (1986).

5. They do not think, to be sure, that every legal question has a unique answer, but where the law, especially the constitutional law, is unclear, they opt for deferring to legislative majorities.

6. I henceforth capitalize Realists to name this group of thinkers. Richard Posner is a contemporary representative; see Posner, How Judges Think (2008).

7. The example is from Herman Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 75 (1928). In this situation type, courts found a way to enforce the promise. By contrast, in cases involving the situation type “employee promises not to compete with an employer after leaving his or her employ,” courts have found a way to invalidate the promise.

8. For detailed discussion and evidence, see Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (2007), esp. chs. 1–3. For a more concise account, see Leiter, American Legal Realism, in The Blackwell Guide to Philosophy of Law and Legal Theory (M. Golding & W. Edmundson eds., 2005). The description in the text pertains to what I call the “Sociological Wing” of realism, which was the dominant strand. The views of Jerome Frank were a bit different on the second and third points.

9. See, e.g., Handler Milton & Pickett Charles, Trade Marks and Trade Names: An Analysis and Synthesis (pts. 1–2), 30 Colum. L. Rev.160, 759 (1930).

10. Brian Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (2010).

11. In chs. 7 and 8, he also takes on contemporary political scientists who have often taken a straw-man view of adjudication as their target. I have no brief here on behalf of their accounts, and if Tamanaha's book has the salutary effect of improving the quality of their work, that will be to his lasting credit. (I do agree with Fred Schauer, though, who points out to me that the political-science work on courts is a useful corrective to much doctrinal scholarship in constitutional law, which talks as though the doctrine is really explanatory of Supreme Court decisions.)

12. Tamanaha, supra note 10, at 3. This non sequitur is not simply an artifact of the introduction to the book; Tamanaha repeats it again much later: “Any approach that defines ‘formalism’ in these terms has doubtful validity, as earlier chapters demonstrated. These ideas were not widely held in the U.S. legal tradition, if they were held by any jurists at all” (id. at 160).

13. See id. at 60–61.

14. Id. at 1.

15. Id.

16. It is not clear that the Realists held the views so described, as I discussed many years ago in Leiter Brian, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev.267 (1997), reprinted in Leiter, Naturalizing, supra note 8, ch. 1. But we can bracket that issue for the moment.

17. Tamanaha, supra note 10, ch. 2.

18. Id. at 13.

19. Id.

20. Id. Later remarks suggest that Tamanaha may mean only that those he is criticizing think the connection is tight; see id. at 54.

21. This appears to be very roughly what H.L.A. Hart thinks, e.g., about “easy” cases. See H.L.A. Hart, The Concept of Law 126–130 (2d ed. 1994); see also the discussion infra.

22. Tamanaha, supra note 10, ch. 2.

23. Id. at 15.

24. I was surprised to see Tamanaha acknowledge the point toward the end of the book: “All lawyers know that judges make the common law. This has been acknowledged for at least two centuries, as earlier chapters document” (id. at 175). The surprise is that this recognition did not lead Tamanaha to suspect the triviality of the issue and the fact that it is orthogonal to any interesting formalist theory of adjudication. To be sure, this contrast, though indeed drawn in common-law classrooms, is a caricature of what really goes on in civil-law courtrooms, as the legions of Legal Realists in civil-law countries—from François Gény in France a century ago to Riccardo Guastini in Italy today—have demonstrated.

25. While historically Natural Law Formalism was associated with Blackstone, it does still have one well-known defender, who is almost entirely absent from Tamanaha's book: Ronald Dworkin. Dworkin does believe that the duty of the judge is always to discover the law that already exists in every case, although he does not subscribe to Tamanaha's second “formalist” thesis, about which more infra. The absence of Dworkin, the “ideal type” of the interesting legal formalist, from Tamanaha's analysis betrays the superficiality of the book's jurisprudential argument.

26. Id. at 28.

27. See id. at 34: “All of the preceding statements were made in the heart of the so-called formalist age. They were made by leading lawyers and judges in high-profile settings. What they say is manifestly at odds with the conventional story about purportedly dominant legal formalist beliefs at the time.”

28. Here I am indebted to Stefan Vogenauer.

29. There is also the question of whether Tamanaha represents his quoted sources fairly. I discuss infra some cases where he does not. I leave it to intellectual historians to carry out a more systematic examination of the sources on which Tamanaha's argument depends.

30. Tamanaha, supra note 10, at 68.

31. Some of the “evidence” from scholars and jurists in the early 1900s is hardly apposite: no one thinks realism arose ex nihilo; it had, of course, a prehistory in the work of earlier thinkers such as Oliver Wendell Holmes and Benjamin Cardozo. And Jerome Frank famously cites Chancellor Kent, writing a century earlier, in support of the thesis that judges first get a “hunch” about the fair outcome and then search for legal reasons to support that conclusion. See Jerome Frank, Law and the Modern Mind ch. 12 n.3 (1930). Even Tamanaha notices that Frank cites jurists from the nineteenth century (see Tamanaha, supra note 10, at 93). I concentrate on Tamanaha's evidence that further predates the 1920s.

32. Tamanaha, supra note 10, at 71–72.

33. Id. at 75.

34. Id. at 77.

35. Id. at 78.

36. The closest one comes in a central realist text is the comment in Holmes Oliver Wendell, The Path of the Law, 10 Harv. L. Rev.457 (1897) about the three possible explanations for why a judge might make a particular legal argument (e.g., implying a condition in a contract in a particular case): “It is because of some belief as to the practice of the community or a class, or because of some opinion as to policy, or, in short, because of some attitude of yours [the judge's] upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions.” Id. at 466. The Realists of the 1920s and 1930s focused almost wholly on the first and third possibilities, not the second.

It should be noted that the critical-legal-studies (CLS) version of “law is politics” is generally not the same as the political-science version, which Tamanaha mostly emphasizes. For the CLS writers, law is often “political” in the sense that the indeterminacies in the law are filled in based on underlying but inchoate philosophical views of a moral and political kind. The locus classicus for that kind of CLS view is Kennedy Duncan, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev.1685 (1976). But this theme was also not one of interest to the Realists.

37. Tamanaha, supra note 10, at 107.

38. I discuss this and the evidence in Leiter, Naturalizing, supra note 8, chs. 1 & 3.

39. See, e.g., Karl Llewellyn, The Common Law Tradition 122 (1960).

40. See, e.g., Moore Underhill & Hope Theodore S. Jr., An Institutional Approach to the Law of Commercial Banking, 38 Yale L.J.703 (1929).

41. Tamanaha, supra note 10, at 80.

42. Id.

43. Id. at 81.

44. See Radin Max, Statutory Interpretation, 43 Harv. L. Rev.863 (1930); Llewellyn Karl, Remarks on the Theory of Appellate Decision and the Rules and Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev.395 (1950).

45. Tamanaha, supra note 10, at 83.

46. Carter James C., The Provinces of the Written and the Unwritten Law, 24 Am. L. Rev.1, 15 (1890), quoted in Tamanaha, supra note 10, at 83.

47. Carter, supra note 46, at 10.

48. Id.

49. Id. at 15.

50. Tamanaha, supra note 10, at 81.

51. Id. at 82.

52. Hammond William G., American Law Schools, Past and Future, 7 S. L. Rev.400, 413 (1881).

53. Id. at 417.

54. Id. at 412.

55. Tamanaha, supra note 10, at 68. He also denies that “the legal realists formed a group or movement.” Id. at 68. His evidence is that “the main characterizations of legal realism put forth by theorists and historians”—he cites only Laura Kalman, Robert Summers, John Henry Schlegel, and Morton Horwitz—are “the promotion of an instrumental view of law as a means to serve social ends, the pursuit of social scientific approaches to law, the efforts of reformers to transform legal education in order to improve legal practice and judging, and attempts by reformers to advance a progressive political agenda in and through the law—or some amalgamation of all four.” Id. at 70. He then fairly notes that those often listed as Realists “did not agree among themselves on these positions.” Id. Since he inexplicably omits attempts by jurisprudential writers explicitly to state distinctive jurisprudential theses characteristic of realism—namely, mine and Fred Schauer's (though he otherwise cites our work)—this is hardly surprising. But we return to this issue infra.

56. Id. at 6; cf. id. at 95–96. Note that balanced realism is not simply an empirical observation about judicial behavior; it is predicated on a jurisprudential view about the indeterminacy of legal reasoning such that judges do have choices to make and can quite properly construe rules and precedents in different ways, etc.

57. See, e.g., Brian Leiter, Legal Realism, in A Companion to the Philosophy of Law and Legal Theory (D. Patterson ed., 1995); and my 1997 paper Leiter, Rethinking Legal Realism, supra note 16, which Tamanaha does cite but not for its precise characterization of realism. And for Schauer's work on realism, see, e.g., Schauer Frederick, Judging in a Corner of the Law, 61 S. Cal. L. Rev.1717 (1988); and Frederick Schauer, Playing by the Rules (1991), at 191–196. Schauer gives a concise summary of his views on realism in Frederick Schauer, Thinking Like a Lawyer ch. 7 (2009).

58. In my own case, an important part of the aim was to show that the realist theory can be reconstructed in a way that reflects recognizable philosophical motivations of a naturalistic kind and insulates it from well-known criticisms in the philosophical literature. But these points are not at issue here.

59. A contrast can be usefully drawn here with the work by Michael Steven Green on realism; see, e.g., Green Michael Steven, Legal Realism as Theory of Law, 46 Wm. & Mary L. Rev.1915 (2005). While I think Green wrong, partly on textual and partly on philosophical grounds, Green's work is jurisprudentially interesting because it articulates precise and distinctive realist theses about law and adjudication.

60. Schauer, Playing, supra note 57, at 192, quoted in Tamanaha, supra note 10, at 93–94.

61. Tamanaha, supra note 10, at 94.

62. Id.

63. See Frederick Schauer, Judging in a Corner, supra note 57; and even earlier, Schauer , Easy Cases, 58 S. Cal. L. Rev.399 (1985).

64. I confine my comments on Tamanaha's mistaken criticisms of me to a footnote. I have already commented supra on Tamanaha's misrepresentation of James Carter's views in the context of his criticism of my claim that the distinctive realist thesis is about responsiveness to situation types as the best explanation of appellate decisions. Tamanaha also purports at one point to be disputing my claim that “American Legal Realism was, quite justifiably, the major intellectual event in 20th century American legal practice and scholarship” (Leiter, Naturalizing, supra note 8, at 1), but since he does not, as we see above, actually discuss the distinctive views of the Realists, on which my claim was predicated, there is no dispute. Everyone can agree with Tamanaha that before realism, there were at least some jurists and scholars who recognized the influence of politics on judicial decision-making and were skeptical that mechanical deduction did any justice to the nature of legal reasoning, but this would do nothing to show that “Realism about judging was commonplace decades before the legal realists came on the scene.” Tamanaha, supra note 10, at 68. A more egregious case—because I point out the error to Tamanaha in an earlier version of this material—is the purported criticism (id. at 2) of my account of formalism in Leiter Brian, Positivism, Formalism, Realism, 99 Colum. L. Rev.1138 (1999), without noting that I was articulating competing substantive views of adjudication, not making an historical claim of the kind he is criticizing. Even if most late-nineteenth-century writers were “realists” instead of “formalists,” this would have no bearing on the jurisprudential question about how we ought to understand adjudication.

65. Tamanaha, supra note 10, at 7. Alas, most of Tamanaha's examples are of Realist judges such as Cardozo or post-Realist judges such as Walter Schaefer.

66. Id. at 69.

67. Id. at 91.

68. See, e.g., Green, supra note 59; see also Michael S. Moore, Educating Oneself in Public: Critical Essays in Jurisprudence 32–35 (2000). H.L.A. Hart, who seems to embrace what Tamanaha is calling “balanced realism” (again, it is hard to say for sure because the characterization is vague and shifting), thought he had a dispute with the Realists, and rightly so.

69. Tamanaha, supra note 10, at 91. In ch. 10, esp. 186–196, Tamanaha expands on his earlier description of “balanced realism,” attributing to realism nine claims about adjudication (his rambling discussion is somewhat repetitive, so I have trimmed the list a bit here): (1) “When judges perceive facts, interpret the law, and render judgments, they are influenced by cognitive framing in the same ways that all cognition is influenced” (id. at 187), but the inevitability of cognitive framing is not the same as “willful judging,” which, unlike the former, “is not ubiquitous and is not inevitable” (id. at 188); (2) “when judges render legal decisions, except in the most routine cases, the purposes behind the applicable rules and the consequences of the decision will have a bearing” (id. at 189); (3) “uncertainties will inevitably arise in interpretation and application of legal rules and principles” (id. at 190); (4) “the region of legal uncertainty is where judges render decisions with the least legal guidance, and where judges' mix of legal and social views has the most leeway and impact—though still in a context thick with legal norms” (id. at 190); (5) “judges are sometimes confronted with what they consider ‘bad rules’ or ‘bad results,’” although they “do not take a uniform position or follow the same course in such situations” (id. at 191), though sometimes, in cases of this kind, there “is an enhanced potential for the influence of the personal values of” the judge to affect the decision (id. at 192); (6) “the common law and statutes contain a variety of standards like fairness and reasonableness, or provisions that require balancing, or that require judges . . . to make judgments. The judgments called for cannot be made in a rule-like fashion and are not determined by legal factors alone,” although judges may often agree due to their sharing “similar training in the legal tradition and its values” as well as “social views” (id. at 192); (7) “judges are not machines or computers” (id. at 194); (8) “judicial decisions frequently are consistent with and determined by the law” (id. at 194); (9) “law is continuously being worked out by judges” (id. at 195). Some of these claims are, at this level of generality, quite banal or merely the flip side of the denial of Vulgar Formalism (e.g., 3, 7 & 9); some are of dubious realist pedigree (e.g., 1, 2 & 6); and some are contested by other accounts of adjudication, as discussed in the text.

70. See, e.g., id. at 144.

71. Edwards Harry T., The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 Clev. St. L. Rev.385, 388 (1983). Notwithstanding the admission of “balanced realism” by Judge Edwards, it is perhaps worth noting that he himself may be understating the role of nonlegal influences on the decisions of his own court, as suggested in Revesz Richard L., Ideology, Collegiality, and the D.C. Circuit: A Reply to Chief Judge Harry T. Edwards, 85 Va. L. Rev.805 (1999).

72. Posner, supra note 6, at 2.

73. Tamanaha, supra note 10, at 124 (my emphasis).

74. See the video of her remarks at the 2005 regarding policy-making by courts in Judge Sonia Sotomayor: Court Is Where Policy Is Made, YouTube, (last visited July 19, 2010).

75. The Federalist Society Online Debate Series, The Sotomayor Nomination, Part II The Federalist Society (July 13, 2009), Seidman says:

I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional careers? Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

76. Consider Elena Kagan's repeated claim, reported in multiple news outlets, that it is “law all the way down” in appellate adjudication.

77. Brian Leiter, Rule and Reason, Times Literary Supplement, Feb. 26, 2010, at 24 (reviewing Frederick Schauer, Thinking Like a Lawyer (2009)).

78. Tamanaha, supra note 10, at 197.

79. The “Dworkin lite” that is popular among constitutional theorists does not appear to commit them to Dworkin's views about the rational determinacy of law and the autonomy of legal reasoning. Most constitutional theorists are simply attracted to the idea that moral considerations are relevant to adjudicating weighty constitutional issues—a view, of course, that does nothing to distinguish Dworkin's jurisprudence from that of the legal positivists. See Brian Leiter, The Radicalism of Legal Positivism, Guild Practitioner (2010).

80. See, e.g., Leiter Brian, The End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 Rutgers L.J.165 (2004), and the references therein.

81. See Brian Leiter, In Praise of Realism (and Against “Nonsense” Jurisprudence), U. Tex. L. Public Law Research Paper No. 138 (Jan. 23, 2010), available at

82. Tamanaha, supra note 10, at 159.

83. See Leiter Brian, Legal Realism and Legal Positivism Reconsidered, 111 Ethics278 (2001), reprinted in Leiter, Naturalizing, supra note 8.

84. Tamanaha, supra note 10, at 166.

85. Id. at 167.

86. Id. at 168.

87. Vehicle,, (last viewed July 2, 2010).

88. Tamanaha, supra note 10, at 170.

89. Id. at 178.

90. Id. at 179 (footnotes omitted).

91. I owe this way of putting the point to Scott Shapiro.

92. Tamanaha, supra note 10, at 179.

93. Hart, supra note 21, at 130–131.

* I am grateful to Mark Tushnet for helpful feedback and to Frederick Schauer and Scott Shapiro for detailed comments.

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