April 2011 Vol. 109 No. 6 THE REVIEW

The Real Formalists, The Realists, and What They Tell Us About Judicial Decision Making and Legal Education

Edward Rubin

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn't think of himself as "Classical" and Richard the Lion-Hearted didn't regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are numerous, remote and unfamiliar, and to create stable images of cultures that are dramatically different from our own. One of the greatest services that a historian can perform is to identify and define a particular time period so that we can grasp its distinctive features. Another great service is to apply critical scrutiny to that definition, to highlight and counteract the distortions that periodization inevitably creates.

Just as our mental topography of Western civilization is irretrievably shaped by its division into Classical Antiquity, the Early Middle Ages, the High Middle Ages, the Renaissance, the Reformation, and the Early Modern Era, so our mental topography of American legal history is shaped by its division into formalism, realism, legal process, and the modern period, the last of which consists of law and economics, critical legal studies, and law and society. Legal historians have done us a great service by grouping the work of judges and scholars into these readily comprehended periods and defining the mode of thought that characterizes each one. In his new book, Beyond the Formalist-Realist Divide, Brian Tamanaha does us a great service by revealing that this periodization rests on serious distortions. Specifically, he demonstrates that the formalists were not formalist, that they simply did not subscribe to the mode of thought that has long been regarded as their defining feature. He goes on show that the realists were not realists, or at least not nearly as realist as subsequent observers have depicted them.

 

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