Overview

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.

Full Product Details

Author:   Brian Z. Tamanaha
Publisher:   Princeton University Press
Imprint:   Princeton University Press
Weight:   0.482kg
ISBN:  

9780691142791

ISBN 10:   0691142793
Pages:   264
Publication Date:   15 November 2009
Audience:   College/higher education ,  Postgraduate, Research & Scholarly
Replaced By:   9781400831982
Format:   Hardback
Publisher's Status:   Out of Print
Availability:   In Print  
Limited stock is available. It will be ordered for you and shipped pending supplier's limited stock.
Language:   English

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

Reviews

Tamanaha has written a provocative challenge to conventional wisdom about the rise of judicial realism... Strongly recommended for scholars and students of law, political science, and history. Choice

Tamanaha has written a provocative challenge to conventional wisdom about the rise of judicial realism... Strongly recommended for scholars and students of law, political science, and history. -- Choice

Author Information

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 .

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