Formalism and realism in ruins (mapping the logics of collapse)

Iowa Law Review

Volumn 95, Issue 1, 2009, Pages 195-244

  Schlag, Pierre ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 76749088559     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (234)

1. This is a continuation of an effort to develop a jurisprudence of form. For other installments, see Pierre Schlag, The Aesthetics of American Law, 115 HARV. L. REV. 1047 (2002) [hereinafter Schlag, Aesthetics];
2. Pierre Schlag, Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction, 40 STAN. L. REV. 929 (1988) ;
3. Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985) [hereinafter Schlag, Rules and Standards].
4. See also Pierre Schlag, The Dedifferentiation Problem, 41 CONTINENTAL PHIL. REV. 35 (2009) [hereinafter Schlag, Dedifferentiation].
5. See infra Part IV (elaborating the localized variants of formalism vs. realism).
6. Compare Laurent B. Frantz, Is the First Amendment Law?-A Reply to Professor Mendelson, 51 CAL. L. REV. 729, 732 (1963) (arguing that courts should not use balancing in all First Amendment cases, but should try to fashion a rule or principle)
7. and Laurent B. Frantz, The First Amendment in the Balance, 71 YALE L. J. 1424, 1425 (1962) (same)
8. with Wallace Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 CAL. L. REV. 821, 823-25 (1962) (arguing from the text and history of the Constitution that the court should use balancing in First Amendment cases)
9. and Wallace Mendelson, The Ftrst Amendment and the Judicial Process: A Reply to Mr. Frantz, 17 VAND. L. REV. 479, 481-83 (1964) (same).
10. See infra Part II (critiquing formalism and realism).
11. Compare Allison H. Eid, Federalism and Formalism, 11 WM. & MARY BILL RTS. J. 1191, 1195 (2003) ("[A] dose of formalism is necessary to adequately protect the values of federalism.")
12. with Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959, 960 (1997) ("[A] formalistic approach to federalism is misguided.").
13. Compare ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW, at vii (1997) ("Laws mean what they actually say, not what legislators intended them to say.")
14. with RONALD DWORKIN, LAW'S EMPIRE 470 (1985) (concluding that law is an attitude that must be pervasive in ordinary lives "if it is to serve us well even in court").
15. Compare William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1479 (1987) ("Statutes, however, should-like the Constitution and the common law-be interpreted 'dynamically,' that is, in light of their present societal, political, and legal context")
16. with John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 675 (1997) ("[T]extualism functions to preserve the integrity of the legislative process by stripping congressional agents of the authority to resolve vague and ambiguous texts of Congress's own making.")
17. and John F. Manning, Constitutional Structure and Statutory Formalism, 66 U. CHI. L. REV. 685, 708 (1999) ("The current academic consensus against textualism rests upon the shakiest of empirical foundations.").
18. For a dispute between takings formalism vs. takings realism, compare Richard A. Epstein, The Harms and Benefits of Nollan and Dolan, 15 N. ILL. U. L. REV. 479 (1995)
19. with Mark Fenster, Takings Formalism and Regulatory Formulas: Exaction and the Consequences of Clarity, 92 CAL. L. REV. 609 (2004).
20. See, e.g., Brian Z. Tamanaha, The Realism of the 'Formalist' Age 2 (St. John's Legal Studies Research Paper, Working Paper No. 06-0073, 2007), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id= 985083# (critiquing the standard account of the formalist era).
21. Thomas C. Grey, The New Formalism 2 (Stanford Law Sch. Pub. Law & Legal Series, Working Paper No. 4, 1999), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=200732 [hereinafter Grey, The New Formalism];
22. see also Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 33-39 (1983) [hereinafter Grey, Langdell's Orthodoxy] (discussing the progression of formalism through time).
23. Nomenclature is always a dicey thing. My hope is that my description here will be recognizable to the reader as a contemporary and commonplace working approach in American law and that the label "realism" evokes its character. Realism, as described here, has some relation to the positive theories of law advanced by some of the legal realists. But what is most important to this paper is that realism be recognizable as a working approach to law used by many contemporary jurists and legal thinkers in their processing of the legal materials.
24. That being said, the realism I describe here tracks very roughly with Robert Summers's account of "pragmatic instrumentalism"-a helpful theorization of the positive vision of law championed by many legal realists and sociological jurisprudes at the beginning of the twentieth century.
25. See generally ROBERT SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY (1982) ;
26. Robert S. Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought-A Synthesis and Critique of Our Dominant General Theory About Law and Its Use, 66 CORNELL L. REV. 861 (1981) [hereinafter Summers, Pragmatic Instrumentalism].
27. The exception is that I do not portray formalism and realism as symmetrical alternatives.
28. See infra Part II. C (introducing realism as something other than a mirror image of formalism).
29. With regard to formalism, the historical veracity of the story is particularly questionable. As David Lyons cautions, "Legal formalism is difficult to define because, so far as I can tell, no one ever developed and defended a systematic body of doctrines mat would answer to mat name. We have no clear notion of what underlying philosophical ideas might motivate its conception of the law." David Lyons, Legal Formalism and Instrumentalism-A Pathological Study, 66 CORNELL L. REV. 949, 950 (1981). Indeed, not only do we confront the problem of the missing referent here (i.e., who or what are we talking about?), but there is the very serious question of whether the ostensible referent was as important or prevalent as the story claims.
30. Consider, for instance, these different stylizations of formalism vs. realism (or their analogues) in different precincts of law's empire: Opinion Writing: The Formal Style and the Grand Style: The "grand style" and the "formal style" are two styles of judicial opinion writing which Llewellyn describes as corresponding to the antebellum period and the end of the 19th century respectively. In the grand style, precedent is considered in light of the reputation of the judge and principle is treated as a source of sense, order, and policy. In the formal style, by contrast, rules decide the cases, policy is left to the legislature, and principle is used to cull errant precedent. KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 36-38 (1960). Moral Reasoning: Immanent Moral Rationality vs. Instrumentalism.
31. See generally Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L. J. 949 (1988) (contrasting a formalist vision of law as an intelligible immanent order with an instrumentalist vision of law as aimed at achieving external ends).
32. Globalizations: Classical Legal Thought vs. the Social. See generally Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL (David Trubek & Alvaro Santos, eds., Cambridge Univ. Press 2006) (contrasting "classical legal thought" as a mode of thought preoccupied with maintaining spheres of autonomy for public and private actors with "the social" as a mode of thought preoccupied with purposive uses of law as a regulatory mechanism).
33. Legal Theory: Grand Theory vs. Pragmatism. Compare DANIEL FARBER & SUZANNA SHERRY, DESPERATELY SEEKINC CERTAINTY (2002) (deriding "grand theory")
34. with Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L. J. 1 (1971) (radicalizing Wechsler's Neutral Principles approach to constitutional adjudication).
35. Internal Architecture of Law: Systematicity and Consequences. Compare Jeremy Waldron, "Transcendental Nonsense" and System in the Law, 100 COLUM. L. REV. 16, 47-52 (2000) (arguing that "systematicity"-the conceptual terminology and coherence of law-is necessary and should "accommodate" policy initiatives)
36. with Felix S. Cohen, Field Theory and Judicial Logic, 59 YALE L. J. 238, 241 (1950) [hereinafter Cohen, Field Theory] (advocating a global-consequentialist form of reasoning).
37. Legal Virtues: Rule of Law and Instrumentatism. See generally Tamanaha, supra note 9 (delineating rule of law and instrumentalist modes of law and legal thought).
38. Weinrib, supra note 14, at 961-62.
39. Lyons, supra note 13, at 950-52.
40. Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 WAKE FOREST L. REV. 473 (2003).
41. Paul Cox, An Interpretation and (Partial) Defense of Legal Formalism, 36 IND. L. REV. 57 (2003).
42. Duncan Kennedy, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought America, 1850-1940, 3 RES. L. & SOC. 3 (1980). Kennedy does not theorize a construct called "formalism", but rather, one called "classical legal thought."
43. Id. This is not just a matter of different nomenclature. Kennedy's construct traverses any ostensible form/substance divide, whereas those who theorize "formalism" (myself included) are focusing very much on something they (we) call form. The difference is important, but there is clearly overlap between the two approaches.
44. Lawrence B. Solum, The Aretaic Turn in Constitutional Theory, 70 BROOK. L. REV. 475 (2004-2005).
45. See generally id.
46. The "meaning-based" term is offered by Duncan Kennedy. Duncan Kennedy, Legal Formalism, in 13 THE INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES 8634, 8635-36 (2001). Kennedy's term is helpful because it captures the ethos so well: the attempt to derive meaning from basic concepts alone, in isolation from history, psychology, politics, and culture.
47. See also Grey, Langdell's Orthodoxy, supra note 10, at 12 ("[O]ne could derive the rules themselves analytically from the principles.").
48. Weinrib, supra note 14, at 961-62.
49. See Summers, Pragmatic Instrumentalism, supra note 11, at 890 ("Consistency, analogy, coherence, harmony, and symmetry were their main tests of soundness.").
50. See Grey, Langdell's Orthodoxy, supra note 10, at 12 ("It was crucial to the completeness of the system that it be conceptually ordered, and that its fundamental principles and their constitutive concepts be sufficiently abstract to cover the whole range of possible cases.") ;
51. Lyons, supra note 13, at 950 ("The law provides sufficient basis for deciding any case that arises. There are no gaps within the law, and there is but one sound legal decision for each case." (internal quotation marks omitted)).
52. Grey, Langdell's Orthodoxy, supra note 10, at 6 ("Classical orthodoxy was a particular kind of legal theory-a set of ideas to be put to work from inside by those who operate legal institutions, not a set of ideas about those institutions reflecting an outside perspective, whether a sociological, historical or economic explanation of legal phenomena.").
53. Id. at 11. Grey stated: When a new case arose to which no existing rule applied, it could be categorized and the correct rule for it could be inferred by use of the general concepts and principles; the rule could then be applied to the facts to dictate the unique correct decision in the case.
54. Id.
55. There are, of course, all sorts of difficulties facing formalists about what to do when the declared positive law itself fails to conform to the legal formalist ideal. The question is: Should such non-conforming law be followed in the name of fidelity to a formalist process, or should it instead be rejected in the name of inconsistency with formalist form?
56. Cf. Cox, supra note 18, at 92-94 (describing formalism as rejecting responsiveness to "social need").
57. Thurman Arnold's major opus is perhaps the most obvious exception. THURMAN W. ARNOLD, SYMBOLS OF GOVERNMENT (1935).
58. As Morton Horwitz put it, legal realism was "more an intellectual mood than a clear body of tenets." MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 169 (1992).
59. Cohen, Field Theory, supra note 14, at 251 ("[W]e can reject the old idea of straight lines of precedent filling absolute legal space.").
60. See generally Jerome Frank, What Courts Do in Fact, 26 ILL. L. REV. 645 (1932) (explaining that what courts do depends, not so much on "facts", but on what various actors, such as judges, juries, and witnesses, believe the facts to be).
61. Id. at 645.
62. Id.
63. Karl N. Llewellyn, On What Is Wrong with So-Called Legal Education, 35 COLUM. L. REV. 651, 668 (1935) (describing law as "a doing").
64. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 809 (1935) [hereinafter Cohen, Functional Approach].
65. Id. at 834.
66. Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 BUFF. L. REV. 973, 980 (2005) (noting that "the principal insight of Realism was that law was best imagined metaphorically as a tool").
67. Robert Hale, Coercion and Distribution in a Supposedly Noncoercive State, 38 POL. SCI. Q. 470 (1923) ;
68. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied injudicial Reasoning, 23 YALE L. J. 16 (1913). Hohfeld is not generally identified as a realist, but rather as an important precursor.
69. Hale, supra note 40, at 471.
70. See id. at 489 ("Frequently it may be true that to preserve one value... it may be necessary to curtail another....").
71. See id. (stating that it would be "impossible" to protect all "rights... against shrinkage of value").
72. For elaboration, see DUNCAN KENNEDY, SEXY DRESSING, ETC. 83-125 (1995) (comparing Hale to Foucault).
73. See generally Cohen, Functional Approach, supra note 37 (introducing the concept of "transcendental nonsense").
74. Summers, Pragmatic Instrumentalism, supra note 11, at 864 n. 2.
75. This is the view of law aptly theorized by Robert Summers. See generally id. (exploring pragmatic instrumentalism).
76. Id. at 864 (describing realism as stressing "time, place, circumstance, and particular wants and interests rather than ideology, abstract theory, principle, and an a priori normative view of the nature of things" (internal quotation marks omitted)).
77. All three insist upon the conflictual character of entitlement creation. Ronald Coase, The Problem of Social Cost, 3 J. L. & ECON. 1 (1960) ;
78. Hale, supra note 40;
79. Hohfeld, supra note 40.
80. For a sustained elaboration, see generally Schlag, Dedifferentiation, supra note 1.
81. See Summers, Pragmatic Instrumentalism, supra note 11, at 922 (describing some legal realists as advancing the view of law as highly malleable).
82. One should not underestimate the extent to which the appeal of realism among legal scholars can be ascribed to parochial or guild self-interest There is no doubt that realism authorizes the expansion of scholarly agendas, particularly relative to the austere scholarly economics of formalism. See generally Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 GEO. L. J. 803 (2009) (discussing the state of contemporary legal scholarship).
83. BRIAN Z. TAMANAHA, LAW AS A MEANS TO AN END 227-45 (2006) (exploring consequentialism as corrosive of the rule of law).
84. See generally LON L. FULLER, THE MORALITY OF LAW (1969) (discussing how morality counteracts the typical failures associated with making law). There are, of course, available responses. One of them is that the rule-of-law virtues-notice, publicity, etc.-are satisfied because citizens already know that the legal regime is instrumentalist and adaptive. This answer, without more, seems a bit formulaic. A variant would be the idea that realism effectively defers to social and economic norms mat are well-known to the citizenry (occasionally better-known than the law itself).
85. Without a heady shot of existentialist commitment, it is hard to see how the realist could ever make up his mind.
86. Indeed, Thomas Grey rightfully suggests, in a slightly different context, that pragmatism provides a respectable intellectual stance that reprieves the need to "have a theory." Thomas C. Grey, Hear the Other Side: Wallace Stevens and Pragmatist Legal Theory, 63 S. CAL. L. REV. 1569, 1569 (1990). As he puts it, "Pragmatism is freedom from theory-guilt."
87. Id.
88. As Summers painstakingly demonstrates, one cannot do means-ends analysis in a vacuum: One has to have an architecture in place delineating identities and institutional parameters within which legal actors can do their means-ends calculus.
89. See Summers, Pragmatic Instrumentalism, supra note 11, at 888.
90. See supra text accompanying notes 31-46, 53-58 (critiquing both comprehensive formalism and realism).
91. (Or partially true).
92. Larry Solum, for instance, tempers his brand of formalism with a great deal of realism. Solum, supra note 20, at 520-22.
93. Even those sympathetic to formalism may well agree. Paul Cox, for instance, says: I cannot defend formalism in its pristine, classical sense... [I]t is simply not an accurate depiction of law as it now is, even if, which is doubtful, it once was such a depiction. I would be guilty of malpractice if I described our law in classically formalistic terms and if I taught it in these terms....
94. Cox, supra note 18, at 61.
95. See supra text accompanying note 55 (offering a strategy for constructing a comprehensive formalist theory).
96. I am not being a semantic imperialist here. Formalists (and others) can define or describe "law" however they want. I am simply making a contingent observation that "law", like other basic terms, plays particular roles within our cultural and intellectual grammars. These grammars will tend to render idiosyncratic definitions irrelevant or Utopian or both.
97. Cox, supra note 18, at 61.
98. And that position is already taken. Weinrib, supra, note 14.
99. See Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 815 (1989) (discussing the virtues of the Holmesian slogan about experience and logic for "practitioners and scholars who work in a context in which Langdellian formalism retains a primeval and often unrecognized power").
100. FREDERIC MAITLAND, THE FORMS OF ACTION AT COMMON LAW 1 (Alfred Henry Chatory & William Joseph Whittaker eds., Cambridge Univ. Press 1936) ("The forms of action we have buried, but they still rule us from their graves.").
101. Schlag, Aesthetics, supra note 1, at 1055-70 (describing the aesthetic of the grid).
102. See, e.g., Antonin Scalia, The Rule of Law and the Law of Rules, 56 U. CHI. L. REV. 1175, 1184 (1989) (endorsing "the plain meaning of the text" as a favored method of interpretation-one that leads to the formulation of clear commands and clear rules).
103. See Grey, The New Formalism, supra note 10 (discussing the revival of formalism in the modern era). Grey "portrays the new formalists (Justice Scalia is taken as representative) as characterized by their pursuit of four jurisprudential strands: objectivism, originalism, textualism, and conceptualism."
104. Id.
105. Elegance, coherence, and the like are not qualities to sneer at. At the same time, one gets the sense that some legal commentators insist on these qualities without regard to context-that is to say, without regard to the particular aims of inquiry or the objects of inquiry.
106. Summers, Pragmatic Instrumentalism, supra note 11, at 918-21 (noting that "pragmatic instrumentalism" depends heavily on "implementive machinery").
107. Jeremy Waldron makes a similar point about the way in which functionalism corrodes legal concepts: But if a given [legal] term is defined in this way [functionally], then it will be identified (for each legal system) with the actual criteria that happen to be used at a given time to determine whether or not the concept applies. Change the criteria, and you change the concept. The trouble with this is mat you then lose the ability of the concept to mark connections with other concepts-connections that survive such changes in applicability.
108. Waldron, supra note 14, at 50.
109. Summers makes this point convincingly. Summers, Pragmatic Instrumentalism, supra note 11, at 909-16.
110. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L. J. 943, 944-45 (1987) (arguing that the balancing approach has permeated modern constitutional interpretation in spite of its shortcomings).
111. See, e.g., Eskridge, supra note 7, at 1483-84 (offering a "dynamic statutory interpretation" that subordinates rules to policies).
112. See Larry Alexander, "With Me, It's All er Nuthin": Formalism in Law and Morality, 66 U. CHI. L. REV. 530, 551-52 (1999) (arguing against reading rules in light of their background purposes).
113. FRED SCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION TO LEGAL REASONING 29-31 (2009) ;
114. Jonathan Weinberg, Broadcasting and Speech, 81 CAL. L. REV. 1101, 1178-79 (1993). Weinberg argues: The fact that law application sometimes works best as a nuanced, nonrule-bound, discretionary process seems like a necessary evil, an exception to the way that legal reasoning-that is, rule application-is supposed to work.... Rules are what law is about. Standards, as a result, are what we use in the cases when it seems that rules won't work.
115. Id.
116. Russell Korobkin notes that this approach describes what most legal scholars do. Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23, 23-24 (2000).
117. Cohen, Field Theory, supra note 14, at 241.
118. One can, for instance, describe law as a field of conflicting policies or interests and see doctrines as provisional truce lines between the antagonistic background forces. Irreconcilable policy conflicts are viewed as fundamental; meanwhile, doctrinal distinctions are viewed as transient Duncan Kennedy attributes this vision to Von Jhering and Demogue: What makes Demogue a founder of conflicting considerations analysis is that he, like Jhering, identified a trade-off that is built into the law-making process. When one thing goes up (security of transaction), something else must go down (static security). This means that it never makes sense, when justifying a rule, to say that it is good because it promotes security of transaction. To make sense, one must add: at an acceptable cost to static security. Likewise for Jhering, it never makes sense to justify a rule by appeal to its administrability-one must always add: and its acceptable cost in over-or under-inclusiveness. This is the basic difference between the conflicting considerations model and the rival approach to policy analysis that identifies one policy per rule.
119. Duncan Kennedy, From the Will Theory to the Principle of Private Autonomy: Lorn Fuller's "Consideration and Form", 100 COLUM. L. REV. 94, 113 (2000). This particular vision, which presents policy as background and line-drawing as foreground has a great deal of appeal if one takes the long-term view. With a timeline of a decade or two, one can easily observe that the policies do not change much over time, while the doctrinal lines shift back and forth. (At least this will seem right in many, even if not all, areas of law.)
120. Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. REV. 1212, 1251-55 (1983) (developing an "eclectic" approach for freedom of speech) ;
121. Grey, The New Formalism, supra note 10, at 9.
122. Ironically, it often turns out that the situation, the scene, and the action are themselves susceptible to characterization both in formalist as well as in realist terms.
123. See infra text accompanying notes 137-42 (describing a battle of framing between Justices Holmes and Cardozo).
124. See Korobkin, supra note 79, at 42-43 (noting that the law and economics literature yields no obvious general preference for rules or standards).
125. For elaboration, see Schlag, Aesthetics, supra note 1, at 1090-91.
126. Choosing between formalism and realism can also be done spontaneously. This would accord variously with existentialist philosophy, irrationalism, or decisionism. The notion here is that the choice of how to formulate or apply doctrine is irreducible. It is never fully dictated by knowledge, reason, or the like. Duncan Kennedy, Form and Substance in Private Law Adjudication
127. 89 HARV. L. REV. 1685, 1775 (1976). Decisionism would entail what Carl Schmitt called "a pure decision not based on reason and discussion and not justifying itself, that is, to an absolute decision created out of nothingness." CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 66 (George Schwab trans., Univ. of Chi Press 2005). Schmitt was a right-wing Catholic theorist-one of the leading legal thinkers of the Weimar period. In 1933, he joined the Nazi party and remained a Nazi until 1945.
128. The form of legal consciousness that corresponds to the embrace of all of these techniques (in their own place and time) might be likened to what Justin Desautels-Stein calls "eclectic pragmatism." See generally Justin Desautels-Stein, At War with the Eclectics: Mapping Pragmatism in Contemporary Legal Analysis, 2007 MICH. ST. L. REV. 565.
129. This is not to say that in some given context we will not have a strong sense whether to favor realism or formalism. But in law, a "sense" is not generally accorded the same status as "knowledge."
130. In philosophy, of course, the fact that the interpretive community may be divided on some question does not preclude the possibility that one side is simply wrong. But one should not mistake law for philosophy, nor presume that the former is the latter's colony.
131. And in using the term "interactive patterns", I am referring to the assortment of reconstructive strategies for deciding between formalism and realism. See supra text accompanying notes 76-87 (discussing strategies for reconstruction).
132. I use the term "aesthetics" throughout this article in the sense elaborated in my previous article, Aesthetics of American Law. "In this conception, the aesthetic pertains to the forms, images, tropes, perceptions, and sensibilities that help shape the creation, apprehension, and even identity of human endeavors, including, most topically, law." Schlag, Aesthetics, supra note 1, at 1050. This conception of aesthetics tracks with the recent efforts to reacquaint numerous social and intellectual enterprises with their aesthetic character.
133. See generally WOLFGANG WELSCH, UNDOING AESTHETICS (Andrew Inkpin trans., Sage Publ'ns Ltd. 1997) (arguing that aesthetics assist in understanding many aspects of cultural and intellectual life).
134. Kennedy, supra note 86, at 1689-90. Prior to Kennedy's work, there does not seem to have been much in the way of sustained analysis of rules vs. standards in the American legal literature. There is a passing reference in the Hart and Sacks materials.
135. Id. (citing H. Hart & A. Sacks, The Legal Process 155-58 (1958) (unpublished manuscript)) ;
136. see also Roscoe Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 TUL. L. REV. 475, 482-83, 485-86 (1933) (stating that rules prescribe definite, detailed legal consequences to a definite set of detailed facts; standards, by contrast, specify a general limit of permissible conduct requiring application in view of the particular facts of the case). The conceptions of rules and standards used in this Article follow Kennedy, Hart, and Sacks's conceptions.
137. For Kennedy's original chart depicting the pros and cons of rules versus standards see Kennedy, supra note 86, at 1710-11. For further recent discussions of rules vs. standards
138. see generally LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW 32-33 (2001) ;
139. RICHARD EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD 21-128 (1995) ;
140. MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 15-63 (1987) ;
141. RICHARD POSNER, THE PROBLEM OF JURISPRUDENCE 42-53 (1990) ;
142. FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKINC IN LAW AND IN LIFE (1991) ;
143. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L. J. 557 (1992) ;
144. Kennedy, supra note 86, at 1741-76;
145. Korobkin, supra note 79;
146. Eric A. Posner, Standards, Rules, and Social Norms, 21 HARV. J. L. & PUB. POL'Y 101, 107-16 (1997) ;
147. Schlag, Rules and Standards, supra note 1;
148. Kathleen M. Sullivan, The Justice of Rules and Standards, 106 HARV. L. REV. 22, 57-95 (1992).
149. See supra notes 91-93 and infra note 95 and accompanying text (providing illustrations).
150. This is not to say, of course, that one cannot make formalist arguments for standards or standard-like arguments for formalism. Nor is it to say that one cannot make realist arguments for rules or rule-like arguments for realism.
151. See Pierson v. Post, 3 Cai R. 175 (N. Y. Sup. Ct. 1805). This is the great first-year lawschool fox-hunt case wherein the court had to decide whether property in the fox vested upon "certain control" (the rule) or "hot pursuit" (the standard). Notice how in the following account, both the rules vs. standards dialectic and the substantive issues are blended together: Pierson thus presents two great principles, seemingly at odds, for defining possession: (1) notice to the world through a clear act, and (2) reward to useful labor. The latter principle, of course, suggests a labor theory of property. The owner gets the prize when he "mixes in his labor" by hunting. On the other hand, the former principle suggests at least a weak form of the consent theory: the community requires clear acts so that it has the opportunity to dispute claims, but may be thought to acquiesce in individual ownership where the claim is clear and no objection is made.
152. Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 77 (1985) (emphasis added) ;
153. see also Henry Smith, Possession as the Origin of Property, 55 STAN. L. REV. 1105, 1119 (2003) (advocating the pro-rule side, noting that, generally speaking, possession must be defined for large heterogeneous audiences-hence, the need for a clear rule).
154. But see, Andrea McDowell, Legal Fictions in Pierson v. Post, 105 MICH. L. REV. 735 (2007) (deflating ever so gently the factual and theoretical presumptions about Pierson v. Post adopted by Rose, Smith, and others).
155. See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 714-16 (2d ed. 1988) (discussing the differences between a dignitary and instrumentalist approach to the question "what process is due?" and making classic anti-standard arguments against the instrumentalist view).
156. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U. S. 1, 99 (1973) (Marshall, J., dissenting) (arguing in favor of a sliding-scale approach to equal protection).
157. Compare Adamson v. California, 332 U. S. 46, 71-92 (1947) (Black, J., dissenting) (arguing that the Fourteenth Amendment should be construed as incorporating the entire Bill of Rights to the states)
158. with Palko v. Connecticut, 302 U. S. 319, 321, 328 (1937) (rejecting appellant's argument that the entire Bill of Rights has been extended to the states through the Fourteenth Amendment and instead adopting a fundamental-rights analysis).
159. Compare W. W. W. Assoc, Inc. v. Giancontieri, 566 N. E.2d 639, 642 (N. Y. 1990) (employing the four-corners approach to enforcing the terms of a contract)
160. with Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co., 442 P.2d 641, 644 (Cal. 1968) (stating that the intention of the parties as expressed in the contract is the source of contractual rights and duties).
161. For examples of five "substantialized" disputes, see supra notes 91-95 and accompanying text In the positive law, the rules vs. standards dispute is most often substantialized in this way. For an extended example
162. see infra notes 137-42 and accompanying text (explaining how in Pokora v. Wabash Railway Co., 292 U. S. 98 (1934), Cardozo employed a pro-standard position while Holmes employed a pro-rule position).
163. Schlag, Rules and Standards, supra note 1, at 383 (stating that an arrested dialectic "doesn't go anywhere" because "there is no moment of synthesis").
164. Cf. Kennedy, supra note 86, at 1775 (discussing the implications of contradictions and stating that the "meaning of contradiction at the level of abstraction" is that there is no "metasystem" that could provide guidance as to a specific mode as circumstances "required").
165. For elaboration of this problem (shallowness), see infra Part V. B.
166. There are, of course, many occasions where we will feel that the court has clearly reached the "right" result or the "wrong" result, but this sense will be largely a function of the way in which we imagine the relevant situation. There is nothing wrong with imagination. But here, it is no solution at all-because the situation (whatever it may be) can be imagined in myriad ways more or less conducive to rules or standards.
167. SCHAUER, supra note 93, at 149-53.
168. Sullivan, supra note 93, at 66 (suggesting that uniform treatment suppresses relevant similarities and differences while a more standard-like approach treats individuals substantively alike).
169. FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 87 (1978). Hayek argues: From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently... [T]he desire of making people more alike in their condition cannot be accepted in a free society as a justification for further and discriminatory coercion.
170. Id. (footnote omitted).
171. Martha C. Nussbaum, Foreword: Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 4, 58 (2007). Nussbaum argues: The first and most crucial suggestion is that the judge ought to think about the rights as capabilities, asking: are people really able to enjoy this right, or are there subtle impediments that stand between them and the full or equal access to the right? Judges should attend closely to history and social context....
172. Id. (emphasis added).
173. Scott R. Peppet, Contractarian Economics and Mediation Ethics: The Case for Customizing Neutrality Through Contingent Fee Mediation, 82 TEX. L. REV. 227, 261-64 (2003).
174. ISAIAH BERLIN, Two Concepts of Liberty, in THE PROPER STUDY OF MANKIND 191, 203-06 (1997) (arguing for negative liberty by contrasting it with the totalitarian implications and potentials of positive liberty).
175. Robin West, Rights, Capabilities, and the Good Society, 69 FORDHAM L. REV. 1901, 1906-07 (2001). West argues: Negative rights elevate or empower the citizen relative to an overreaching, paternalistic state. Yet by staying the paternalist's intervening hand, negative rights both subordinate that citizen to his stronger brother-thereby entrenching private inequalities-and disable the state from securing, on behalf of weaker citizens, the material preconditions to developing the capabilities necessary to a fully human life.
176. Id.;
177. see also STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 9-12 (2005) (contrasting modern liberty with active liberty) ;
178. Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. 1129, 1132-33 (1986) (contrasting a negative conception of freedom with a republican conception).
179. Posner, supra note 93, at 117 ("The rule of law is important if we care about autonomy, because standards, more so than rules, encourage self-reinforcing conformity to the imagined goals of the state rather than actions that reflect one's authentic values and interests.").
180. Nussbaum, supra note 109, at 11. Nussbaum argues: At the heart of the CA [capabilities approach] is an idea... that all human beings are precious, deserving of respect and support, and that the worth of all human beings is equal. What respect centrally involves, the CA holds, is supporting human beings in the development and exercise of some central human abilities, especially prominent among which is the faculty of selection and choice.
181. Id.
182. See Scalia, supra note 69, at 1183-84 (explaining plain-text interpretation).
183. My binary division here deliberately eclipses some important conventional differences among the several standard approaches to constitutional interpretation.
184. For a helpful account of the main kinds of interpretation in constitutional law, see PHIL BOBBITT, CONSTITUTIONAL FATE 3-122 (1982) (describing the various modes of constitutional interpretation-historical, textual, doctrinal, prudential, structural, and ethical). Please note that I am not suggesting that the distinction between "textual" and "purposive" interpretation is coherent. I have simply drawn the distinction from the perspective of textualists-who tend to see all other contenders as impermissibly taking leave of the text for some preferred context (e.g., framer's intent, political philosophy, etc.). My view on this question is almost the opposite-namely that, in constitutional law, an authentic commitment to textualism leads to just about any other kind of interpretation.
185. Pierre Schlag, Hiding the Ball, 71 N. Y. U. L. REV. 1681, 1688-92 (1996) (showing how the earnest judge who starts interpreting the text of the constitution is led, out of a concern for fidelity, to adopt (by turns) plain meaning, structural interpretation, judicial method, political theory, etc.).
186. Anthony D'Amato, Counterintuitive Consequences of "Plain Meaning", 33 ARIZ. L. REV. 529, 538 (1991). He stated that: A consequence of insisting on plain meaning... is that it can induce a state of mind that thrives on arbitrariness.... Only in those cases where the literal construction of a statute coincides with its reasonable and just interpretation in the context of a given case, can the plain meaning rule be harmless.
187. Id.
188. See generally William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990) (explaining the benefits of purposive interpretation).
189. Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 351 (2005) ;
190. Adrian Vermeule, Interpretive Choice, 75 N. Y. U. L. REV. 74, 123-26 (2000).
191. H. L. A. HART, THE CONCEPT OF LAW 126 (1961).
192. Edward L. Rubin, Modern Statutes, Loose Canons and the Limits of Practical Reason: A Response to Farter and Ross, 45 VAND. L. REV. 579, 586 (1992) ("[A] legislature and the administrative agencies within the same jurisdiction are linked by an incredibly dense network of relationships and shared activities.... Like family members, they develop a shared and specialized set of linguistic understandings based on this continuous, intense relationship. ").
193. ROBERT H. BORK, THE TEMPTING OF AMERICA 5-7, 143-160 (1990).
194. Robin Kundis Craig, The Stevens/Scalia Principle and Why It Matters: Statutory Conversations and a Cultural Critical Critique of the Strict Plain Meaning Approach, 79 TUL. L. REV. 955, 1037 (2005) Craig states:
195. In taking an "acontextual" textualist reading of such statutes-the reading of an outsider "ordinary person" coming cold to the most recent statutory pronouncements-the strict plain meaning approach ignores the statute's dialogic dimension, the evolved and evolving meanings accepted by the relevant subculture, allowing Justices using that approach to exploit textual imprecision and historical terms of art to impose their own meaning on the statutory language.
196. Id.
197. See SCALIA, supra note 6, at 36 (discussing how judges typically will not follow legislative history when it does not support the outcome they want by saying it is, "as a whole, inconclusive").
198. William N. Eskridge, The New Textualism, 37 UCLAL. REV. 621, 647-48 (1990) (tracing to Holmes the formalist argument that the "courts must never lose sight of the text, which is formally all that Congress enacts into law" (internal quotation marks omitted)).
199. Abner S. Greene, The Missing Step of Textualism, 74 FORDHAM L. REV. 1913, 1917 (2006) (arguing that a strict constructionist textualism that disregards context can lead to absurd results).
200. See id. (describing the pitfalls of using the plain meaning of words and disregarding context when interpreting statutory language).
201. See id. at 1924-25 (presenting the textualist argument that judges could use purposivism to slant statutory language to fit their views).
202. Sullivan, supra note 93, at 80 (quoting Planned Parenthood v. Casey, 505 U. S. 833, 1000 (1992)).
203. See Craig, supra note 124, at 1037 (arguing the textualist approach ignores "the evolved and evolving meanings accepted by the relevant subculture").
204. Planned Parenthood, 505 U. S. at 866.
205. Sullivan, supra note 93, at 80.
206. Frederick Schauer, Formalism, 97 YALE L. J. 509, 528 (1988).
207. Id.
208. Indeed, the contributions of the formalism vs. realism divide extend far beyond law. As William James, the great American pragmatist, put it: In manners we find formalists and free-and-easy persons. In government, authoritarians and anarchists. In literature, purists or academicals, and realists. In art, classics and romantics. You recognize these contrasts as familiar; well, in philosophy we have a very similar contrast expressed in the pair of terms "rationalist" and "empiricist", "empiricist" meaning your lover of facts in all their crude variety, "rationalist" meaning your devotee to abstract and eternal principles. No one can live an hour without both facts and principles, so it is a difference rather of emphasis; yet it breeds antipathies of the most pungent character between those who lay the emphasis differently; and we shall find it extraordinarily convenient to express a certain contrast in men's ways of taking their universe, by talking of the "empiricist" and of the "rationalist" temper. These terms make the contrast simple and massive.
209. WILLIAM JAMES, PRAGMATISM, A NEW NAME FOR SOME OLD WAYS OF THINKING 9 (1907) ;
210. see also id. at 12 (explaining the different characteristics of rationalists and empiricists).
211. Balt. & Ohio R. R. Co. v. Goodman, 275 U. S. 66 (1927)
212. limited in Pokora v. Wabash Ry. Co, 292 U. S. 98 (1934).
213. Balt. & Ohio R. R. Co., 275 U. S. at 70.
214. There are other ways of explaining Holmes's decision. I will mention one, if only because it is an interesting sidelight on the case. It appears that there was no evidence as to whether Goodman, the driver, actually looked or not. In such cases, the burden would seem to rest upon the defendant railroad to show that the driver did not look. That at least was the rule invoked by the lower court. Balt. & Ohio R. R. Co. v. Goodman, 10 F.2d 58, 59 (6th Cir. 1926) (citing Beckham v. Hines, 279 F. 241, 243 (6th Cir. 1922)), rev'd, Balt. & Ohio RR. Co., 275 U. S. at 70. The appellate court in Beckham stated: "In the absence of satisfactory evidence to the contrary on the part of eyewitnesses, the law presumes that decedent looked and listened before crossing the track." Beckham, 279 F. at 243. Holmes's adoption of the stop-and-look rule-requiring affirmative evidence of looking by the driver-thus arguably seems like a reaching pro-defendant, pro-railroad evidentiary gambit.
215. Another way of characterizing Holmes's view is that he has an entirely different factual context in mind here-not so much railroad crossings, but rather courts sitting in judgment on these railroad-crossing accidents.
216. This, then, is Cardozo's decidedly baroque-read: standard-like-view of railroad crossings (and what they might require by way of safety precautions by drivers) : Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoiter is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. Often the added safeguard will be dubious though the track happens to be straight, as it seems that this one was, at all events as far as the station, about five blocks to the north. A train traveling at a speed of thirty miles an hour will cover a quarter of a mile in die space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction. At times the course of safety may be different. One can figure to oneself a roadbed so level and unbroken that getting out will be a gain. Even then the balance of advantage depends on many circumstances and can be easily disturbed. Where was Pokora to leave his truck after getting out to reconnoiter? If he was to leave it on the switch, there was the possibility that the box cars would be shunted down upon him before he could regain his seat The defendant did not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen. If he was to leave his vehicle near the curb, there was even stronger reason to believe that the space to be covered in going back and forth would make his observations worthless. One must remember that while the traveler turns his eyes in one direction, a train or a loose engine may be approaching from the other. Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury. Pokora v. Wabash Ry. Co, 292 U. S. 98, 104-06 (1934) (citations omitted).
217. They are not imagining the same crossings. Holmes is thinking about what the driver knows. Cardozo is thinking about the variety of precautions that might be reasonable given the wide array of different railroad crossing situations. And each of them is already thinking about the operative facts, the context in a way which will lead, respectively, to a rule or a standard. It is, of course, conceivable that the historical actuality was quite the reverse. Perhaps Holmes was fixated on a rule and Cardozo on a standard and each read the facts, the context to achieve their desired outcomes. Or perhaps each was thinking about the whole tiling dialectically.
218. This is not to say that one couldn't get from Holmes's account of the facts to a standard or from Cardozo's description of the facts to a rule. Logically, there is nothing that would prevent such a result. But it's also beside the point here, which is simply that the appeal of formalism/rules/ textualism and realism/standards/contextualism is already anticipated and prefigured (hence recursivity) in the description of the facts (the railroad crossing) and the transactional dilemma (the train/car encounter).
219. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 948 (2003).
220. For a sophisticated elaboration of this point, see generally STEVEN WINTER, A CLEARING IN THE FOREST: LAW, LIFE, AND MIND (2001) (discussing the idea that reason is a product of dynamic social values that contribute to law in concrete and predictable ways).
221. In the context of language and cognition, see generally GEORGE LAKOFF & MARK JOHNSON, PHILOSOPHY IN THE FLESH (1999).
222. H. L. A Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958) ; Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630, 662 (1958).
223. Hart, supra note 146, at 593; Fuller, supra note 146, at 662.
224. Schlag, supra note 117, at 1688-92 (describing the institutional, practical, and jurisprudential orientations of the judicial interpreter as she reads the constitutional text) ;
225. Sunstein and Vermeule, supra note 144, at 886 (emphasizing the importance of institutional context in deciding upon an interpretive methodology).
226. Notice that the object of attention has just been reduced to a text (a somewhat narrower category).
227. 150.... and, of course, many more. Those parenthetical divisions are only my categories. One could think of many other ways of slicing and dicing tilings up.
228. For an elaborate demonstration of the point, see Schlag, supra note 117, at 1683-86.
229. For elaboration, see Schlag, Dedifferenliation, supra note 1, at 47.
230. Finding an appealing and yet faithful definition of textualism is no easy task. Consider the definition below and note the way the last phrase effectively cannibalizes the meaning of the first part of the sentence: "[T]extualism does not admit of a simple definition, but in practice is associated with the basic proposition that judges must seek and abide by the public meaning of the enacted text, understood in context (as all texts must be)." John Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 420 (2005).
231. This reflexive feedback-loop effect is a crucial part of Coase's attack on Pigouvian externalities analysis. Pierre Schlag, The Problem of Transaction Costs, 62 S. CAL. L. REV. 1661, 1661 (1989) ;
232. see id. (discussing Coase's article, The Problem of Social Cost, 3 J. L. & ECON. 1 (I960)).
233. See Jason S. Johnston, Uncertainty, Chaos, and the Torts Process: An Economic Analysis of Legal Form, 76 CORNELLL. REV. 341, 361-62 (1991) (arguing that rules and standards tend over time to produce information showing their inadequacy thus leading to their replacement by their opposite).
234. Sunstein and Vermeule in this respect are quite right to focus attention on the institutional context. Sunstein & Vermeule, supra note 144, at 866. Solum, in turn, is quite right in pointing out that institutional context requires a focus on the virtues of judges and judging. Solum, supra note 20, at 522-23.