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Beyond the Formalist-Realist Divide: The Role of Politics in Judging Paperback – November 15, 2009

ISBN-13: 978-0691142807 ISBN-10: 0691142807

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Product Details

  • Paperback: 264 pages
  • Publisher: Princeton University Press (November 15, 2009)
  • Language: English
  • ISBN-10: 0691142807
  • ISBN-13: 978-0691142807
  • Product Dimensions: 0.8 x 6 x 9 inches
  • Shipping Weight: 13.6 ounces (View shipping rates and policies)
  • Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
  • Amazon Best Sellers Rank: #341,714 in Books (See Top 100 in Books)

Editorial Reviews

Review

"Tamanaha has written a provocative challenge to conventional wisdom about the rise of judicial realism. . . . Strongly recommended for scholars and students of law, political science, and history."--Choice

"Beyond the Formalist-Realist Divide is a clearly written and groundbreaking book. Although its focus is historical, its objective--in which it succeeds--is to change the way we think about law today."--Henry Cohen, Federal Lawyer

"Tamanaha's book reflects some striking research into the views of (largely forgotten or neglected) 19th-century law professors and jurists, and the material he has brought to our attention will demand attention from legal historians. . . . [W]e should be grateful to Tamanaha for his provocative historical research, for laying down a vigorous challenge that should be met by historians of ideas and social scientists, and for imparting appropriate intellectual caution and modesty to future writers who might otherwise be prone to casual talk about a 'formalist' age in American legal thought."--Brian Leiter, Legal Theory

"Tamanaha's . . . book will change the way we think about both formalism and realism, about the history of legal scholarship and about the empirical study of judicial decision making."--Edward Rubin, Law and Politics Review

From the Inside Flap

"Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against nave or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign

"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law

"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals

--This text refers to an out of print or unavailable edition of this title.

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15 of 15 people found the following review helpful By Ronald H. Clark VINE VOICE on April 4, 2010
Format: Paperback Verified Purchase
I happen to be quite fond of revisionist studies (e.g., "Harding was a great president") because they challenge long-held beliefs, cause you to rethink your fundamental ideas, and get the brain cells jumping. This is just such a book. While I disagree with nearly all of the author's central arguments, it nonetheless merits 5 stars due to its superior scholarship, although it does evidence some methodological problems along the way. After a fine initial chapter which summarizes the book's entire arguments, the first section undertakes to refute decades of academic writing that asserted that for much of the 19th and early 20th centuries, judges argued they did not "make" law but instead simply mechanically derived the answers to legal questions by logical analysis from established principles. In this analysis of "legal formalism," the author's principal targets are folks like Jerome Frank, Grant Gilmore, and Roscoe Pound. Therefore, the author contends, the assertion that the legal realists of the 1920's and 1930's uncovered the truth about judicial decisions, and stripped away layers of obfuscation, to reveal the truth, is a distortion. Rather, the author asserts, everybody recognized that judges were influenced by external factors and not controlled by logic. As we all recall, Holmes asserted as early as 1881 that "the life of the law has not been logic; it has been experience."

Part Two focuses upon the legal realists themselves and argues largely that the so called discoveries of the legal realists as to how judges made decisions had been widely recognized for decades before their appearance. Particularly is this true in connection with the historical school of jurisprudence.
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