Brian Tamanaha has just posted a really terrific article, The Realism of the "Formalist" Age. The article very persuasively makes a point that I've pondered here before, namely that the basic insights of legal realism were nothing new when the realists claimed to "discover" them. As Tamanaha shows, many perspectives on law that today are considered "realist" were part of the basic understanding of law during what is now characterized as the "formalist" era.

  Here's the abstract:

It is almost a truism in contemporary legal theory and legal history that the 1870s through the 1920s was the age of "formalism." Judges in this period applied logical methods, relied upon conceptual analysis, and rendered decisions in a rule-bound fashion that paid little heed to social consequences. The common law was characterized as comprehensive, gapless, and logically consistent, with a right answer for every case; law was understood to be a science. A more realistic view of law was ushered in by the Legal Realists, who built upon the writings of Oliver Wendell Holmes and Roscoe Pound to destroy formalistic thought. The Realists argued that the law is substantially indeterminate: there are gaps and inconsistencies in the law, exceptions can be found for most rules or principles, precedent often can be enlisted to support opposite outcomes. They argued that judicial decisions should not be based upon abstract conceptual analysis; rather, law is a means to social ends. A number of Realists argued that judicial decisions are the product of subjective predilections of judges, or that judges come to the result first, then structure their legal analysis to rationalize the result.

This article argues that the standard account of the formalist period is fundamentally incorrect. Quoting and citing many speeches and publications, it demonstrates that a consummately realistic view of law and judicial decision making was expressed throughout the so-called formalist period. Many of these realistic statements - mentioning the uncertainty of law, the availability of precedents on all sides, and the understanding that judges' subjective views influence their legal decisions - were uttered by judges, professors, and leaders of the bar. The article shows how the image of formalism was constructed by Roscoe Pound, Karl Llewellyn, and Grant Gilmore in a manner that systematically excluded this large body of realistic discourse, thereby creating a distorted portrayal of the period. Moreover, the article argues that our perception of the Legal Realists (and Holmes) as bold mavericks is erroneous. The Realists were merely the latest episode in a constant stream of skeptical observations about law and judging that extends back many decades.

The objective of this article, beyond correcting our misimpression of these important periods in our legal history, is to break the hold of the formalist-realist antithesis that structures and constrains contemporary views of judicial decision making.

  Highly recommended. (For Brian's blog post that touches on some of the same themes, see here.)