Tamanaha on the Combination of Formalism and Realism

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, has published The Combination of Formalism and Realism as Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Here is the abstract.

For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.

Download the article from SSRN at the link.

Van Domselaar on Tragic Legal Choices

Iris van Domselaar, University of Amsterdam, has published On Tragic Legal Choices as Amsterdam Law School Research Paper No. 2017-03 and Law and Justice Across Borders Research Paper 2017-01. Here is the abstract.

In this paper the concept of the tragic legal choice is established as an indispensable complement to our theoretical understanding of adjudication. Not only in rare, exotic and consequently numerically negligible cases, judges may be confronted with tragic legal choices. In these cases adjudication will engender a sense of tragic loss, a lack of clarity, incommensurability and messiness, which cannot be avoided, overcome, or dismantled as a pre-reflective or extra-legal illusion. In this sense, this paper is a harbinger of ‘bad news’ for law and adjudication. The paper is organized as follows. It firstly discusses the concept of the ‘tragic’ in (the history of) practical philosophy. Subsequently, the central features of a tragic legal choice are laid out: it is the result of a genuine conflict between judicial commitments, it leaves a tragic remainder in its wake and it typically evokes a tragic response on the part of the judge. In the elaboration of the first feature, different categories of conflicts between judicial commitments that may give rise to tragic legal choices are distinguished. After this survey, the purported advantages and drawbacks of anchoring this concept in both the theory and practice of adjudication are analysed. Throughout the paper a variety of legal cases will be discussed, partly in order to foster the reader’s sense of the tragic.

Download the article from SSRN at the link.