Beyond the formalist-realist divide : the role of politics in judging / Brian Z. Tamanaha.

Format:

Book

Author/Creator:

Tamanaha, Brian Z.

Language:

English

Subjects (All):

Judges--United States.

Judges.

Judicial process--United States.

Judicial process.

Law--Political aspects--United States.

Law.

Law--United States--Philosophy.

Physical Description:

1 online resource (265 p.)

Edition:

Course Book

Place of Publication:

Princeton, NJ : Princeton University Press, c2010.

Language Note:

English

Summary:

According to conventional wisdom in American legal culture, the 1870's to 1920's 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 1920's and 1930's, 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.

Contents:

Front matter

Contents

Acknowledgments

1. Introduction

Part One. The Legal Formalists

2. The Myth about Beliefs in the Common Law

3. The Myth about "Mechanical Jurisprudence"

4. The Holes in the Story about Legal Formalism

Part Two. The Legal Realists

5. Realism before the Legal Realists

6. A Reconstruction of Legal Realism

Part Three. Studies of Judging

7. The Slant in the "Judicial Politics" Field

8. What Quantitative Studies of Judging Have Found

Part Four. Legal Theory

9. The Emptiness of "Formalism" in Legal Theory

10. Beyond the Formalist-Realist Divide

Afterword

Notes

Index

Notes:

Description based upon print version of record.

Includes bibliographical references and index.

ISBN:

9786612458590

9781282458598

1282458590

9781400831982

1400831989

OCLC:

593215217