Brian Leiter comments on Brian Tamanaha’s The Bogus Tale About the Legal Formalists. As you will see, Leiter concedes an enormous amount of ground–but he has a very important point to make:
Tamanaha gives us no sense of what was distinctive about the arguments and claims of the Legal Realists, which makes it rather too easy for him to describe earlier views as examples of "the Realism of the Formalist age". For example, Realists (as I have reconstructed them: cf. my Naturalizing Jurisprudence) argued that: (1) legal reasoning is indeterminate in cases that reach the stage of appellate review because of the existence of equally legitimate but conflicting canons of interpretation that can be applied to precedents and statutory materials; (2) in deciding cases, judges are responsive to ‘situation-types’–recurring factual patterns that elicit a predictable normative response from most jurists, a response that is not, however, predictable based on existing paper rules and doctrines; and (3) in the commercial law context especially, judges look to the "normal" practices in the existing commercial culture in deciding what is the right outcome. Tamanaha adduces no evidence that I saw that these actual theses of the Realists enjoyed any currency in the late 19th-century.
I am inclined to agree with Leiter that Tamanaha will eventually need to produce a careful theoretical analysis of both 19th Century jurisprudence and of American Legal Realism. Leiter’s work on the latter topic is essential–although I think Leiter’s version is one of several possible reconstructions of the content of realism, which everyone should acknowledge was a loosely related family of theories and not the three theses that Leiter identifies (or any other collection of core content).
And I am also inclined to agree with Leiter that Tamanaha’s presentation of his evidence would be more convincing if it were understated–which it isn’t.
But this should not obscure the evidence that Tamanaha has produced both in The Bogus tale, and in the companion article Understanding Legal Realism. With just a little luck, Tamanaha’s work and the inevitable counter-reaction will give rise to a new and demythologized understanding of the realism and formalism. In my opinion, Leiter is on to something truly important when he makes the following observation:
The strong version of Tamanaha’s thesis–if it were true–would also render mysterious the strong reaction to Legal Realism in the 1930s and 1940s, and continuing to the present day. After all, if it were true that there was no "formalist" age and that Legal Realism just continued earlier lines of thinking, then why did Roscoe Pound, John Dickinson, and Lon Fuller, among others, react so strongly to Realism?
Leiter is right, we need an explanation for the critique of realism. And that explanation will not be that the realists exposed the "mechanical jurisprudence" practiced by formalists. That explanaiton will not lie in the cartoon version of the formalist age that Tamanaha effectively punctures. The explanation will lie in the more ambitious claims of legal realism–the radical claims that realists sometimes endorsed and sometimes disclaimed. These claims justified strong instrumentalism–an extravagent theory that overclaimed the implications of the role of practical judgment and interstitial lawmaking in adjudication. Leiter’s elegant reconstruction of American Legal Realism has the great virtue of identifying those portions of realis, that are defensible and that make significant contributions to legal thought. But that isn’t the end of the story!
Read Leiter and Tamanaha.