Friday, November 20, 2009

Brian Z. Tamanaha's "Beyond the Formalist-Realist Divide"

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.

He applied the “Page 99 Test” to his new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, and reported the following:
Here is the first full paragraph on page 99:
This conventional picture, however, fails to acknowledge the massive increase of intrusive legislation that occurred from the final decade of the nineteenth century onward. “The most casual newspaper-reader and observer of legislation,” an editor wrote in 1887, “must have had his attention attracted to a growing tendency in our legislation toward the regulation of private and personal concerns.” “At no time and in no country has legislation been so active,” remarked a commentator in 1911.

A legislative onslaught it was….
As bad luck would have it, page 99 is poorly representative of the book. Although most of the book does not go into great detail about legal regulation, this page catalogues various types of social and economic legislation enacted in the 1890s.

Beyond the Formalist-Realist Divide debunks a historical narrative that dominates debates about judging within the U.S. legal culture. According to the conventional narrative, lawyers and judges at the turn of the 20th century widely believed in “legal formalism”—the idea that judges engage in mechanical deduction when deciding cases. In the 1920s and 1930s, the story tells, the legal realists destroyed the formalist view of judging by demonstrating that law is filled with gaps, contradictions, and inconsistent precedents; the realists argued that judges manipulate legal rules to reach desired outcomes.

The book shows that this standard narrative is false. Legal formalism, it turns out, was a myth created by critics (including the legal realists themselves) to discredit courts at the turn of the century. Lawyers and judges at the time did not think judging was deductive, and the legal realists were not radical skeptics about judging.

This conventional narrative, although baseless, is widely accepted as true today. The book explains how this false account became entrenched within the legal culture, and went on to warp political science research on courts as well as legal theory debates about judging.

Page 99 taken in isolation is not a good measure of “the quality of the whole” because this page is dry in content (although it is a better indication than page 66, which is blank). Unless there is something magical about page 99 that I am unaware of, the test proposed by Ford might work better if it involved reading three pages, say 9, 99, and 199. (Oops. I just checked—that fails as well. Page 9 and page 99 are the final pages of chapters, with hardly any text.).
Read an excerpt from Beyond the Formalist-Realist Divide, and learn more about the book at the Princeton University Press website.

--Marshal Zeringue