The Mounting Evidence Against the ‘Formalist Age’

19 Pages Posted: 28 Jun 2014

See all articles by Brian Z. Tamanaha

Brian Z. Tamanaha

Washington University in St. Louis - School of Law

Date Written: June 1, 2014

Abstract

In Beyond the Formalist-Realist Divide (2010), I challenge the widely held view that American legal culture at the turn of the twentieth century was dominated by belief in legal formalism, which the legal realists came on the scene to shatter in the 1920s and 1930s. Our image of the “Formalist Age,” I argue, is not historically accurate — many prominent jurists in the period expressed consummately realistic views of law and judging. This essay is a concise presentation of the historical evidence that supports my position, citing a major work completed since the publication of my book that adds support to my argument. While presenting this evidence, I respond to assertions by Professors Al Brophy and Frederick Schauer that the many realistic statements I convey in the book are merely examples of early realism, which are insufficient to refute the conventional image of the formalist age.

What I show is that, not only is the evidence of realism explicit and plentiful — as realistic as anything legal realists would say three decades later — but also that realistic views of law and judging were uttered by the very jurists who have been identified as leading legal formalists. The story of the formalist age does not hold up.

Keywords: Legal history, Jurisprudence, Courts, Judging, Law and the Social Sciences, Law and the Humanities

Suggested Citation

Tamanaha, Brian Z., The Mounting Evidence Against the ‘Formalist Age’ (June 1, 2014). Texas Law Review, Vol. 92, No. 1667, 2014, Washington University in St. Louis Legal Studies Research Paper No. 14-06-03, Available at SSRN: https://ssrn.com/abstract=2459657

Brian Z. Tamanaha (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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