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The Positive Foundations of Formalism: False Necessity and American Legal Realism

34 Pages Posted: 23 Jun 2014  

Lawrence B. Solum

Georgetown University Law Center

Date Written: June 21, 2014

Abstract

"The Positive Foundations of Formalism: False Necessity and American Legal Realism" explores the relationship between claims that judging is inherently political or ideological and contemporary studies of judicial behavior. These themes are developed in the context of a review of "The Behavior of Federal Judges" by Lee Epstein, William M. Landes, and Richard Posner.

In this review, I begin in Part I with the book’s core, situating Behavior of Federal Judges’ empirical findings in the context of the evolution of the attitudinal model and the emergence of empirical studies of judicial behavior that emphasize the role of law as an important causal factor. Part II is about microfoundations. Behavior of Federal Judges offers a rational choice account theory of the causal mechanisms that determine judicial behavior in the form of a labor economics model — judges are viewed as agents of a diffuse principal whose preferences range over their income and the satisfactions obtained from the various ways in which they spend their time.

In Part III, the review then takes a step back from the details of Behavior of Federal Judges’ empirical and theoretical account and engages the fundamental issues at stake — the questions raised by the debate between formalists and realists. Behavior presents itself as a purely positive account: “Ours is strictly a positive analysis. We do not ask how judges should decide cases but how they do decide them — more broadly, how they do their judicial work (which is not limited to casting votes in cases).” (pp. 5-6) Implicitly, Behavior assumes that the empirical findings and rational choice models show that judging is an inherently realist enterprise — not only does ideology partially determine judicial behavior, it does so necessarily. But this assumption is undermined by Behavior’s empirical findings. In fact, Epstein, Landes, and Posner provide strong evidence that that these claims (that judging must be political) involve false necessity. Putting this same point positively, Behavior provides evidence that legal formalism is possible — inside the feasible choice set and not mere “pie in the sky.”

Keywords: Judging, Positive Political Theory, PPT, Judicial Behavior, Law and Courts, Realism, Legal Realism, Formalism, Legal Formalism, Jurisprudence, Philosophy of Law, Positive Legal Theory, Normative Legal Theory, Posner, Epstein, Landes

Suggested Citation

Solum, Lawrence B., The Positive Foundations of Formalism: False Necessity and American Legal Realism (June 21, 2014). Harvard Law Review, Vol. 127, No. 8, p. 2464, 2014. Available at SSRN: https://ssrn.com/abstract=2457357

Lawrence B. Solum (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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