The Legal Theory Bookworm recommends Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Brian Z. Tamanaha. Here is a description:
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.
And from the reviews:
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"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