Legal Theory Blog

Cox & Miles on Judicial Ideology & Voting Rights Jurisprudence

Adam B. Cox & Thomas J. Miles (University of Chicago - Law School) have posted Judicial Ideology and the Transformation of Voting Rights Jurisprudence (University of Chicago Law Review, Vol. 75, 2008) on SSRN. Here is the abstract:

For two decades, the doctrinal test laid out in Thornburg v. Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles framework really plays in voting rights litigation. More basically, it raises the fundamental question of whether legal doctrine actually constrains judicial decisionmaking. Using a dataset of every Section 2 decision issued since Gingles, this Article explores these twin puzzles. It finds substantial evidence that legal rules are indeed more ideologically constraining than standards. Ideological divisions are much more pronounced in the standard-like second step of Gingles than under the more rule-like preconditions. Moreover, the Article shows that the doctrinal dynamics of vote dilution litigation have changed dramatically over the past two decades. As the representational and political implications of vote dilution claims have shifted, the Gingles factors that both judges and scholars claim are central to the liability inquiry have become far less important. Courts' sharp movement away from the centrality of the Gingles factors amounts to a largely unrecognized second transformation of voting rights litigation.

And from the paper:

Our findings provide support for two of the central theoretical intuitions about rules and standards. First, they indicate that rules indeed may, to a greater extent than standards, limit discretion and suppress ideological disagreements among judges. Second, they suggest that the flexibility preserved by standards may make it easier for adjudicators to respond to changing circumstances over time.

These findings have important implications for the long‐standing debate about whether (and how) legal rules actually constrain judges. But our results also lead to a number of specific insights about the operation of the Voting Rights Act and the protection of minority voting rights. The doctrinal structure that Justice Brennan created in Gingles may well have been intended to encourage judicial intervention in the wake of Congress’s amendments to Section 2. By establishing a set of relatively objective preconditions to liability, Brennan gave lower courts a steadier foothold for liability findings. Nonetheless, as these preconditions over time became a potential threat to substantive minority representation and the Democratic party, Brennan’s two‐stage analytic framework became more meaningful as a safety valve against liability than a spur to it. This safety valve may have allowed courts to respond more easily to changing social conditions and political consequences. But the cost has been the growing irrelevance of the Gingles preconditions themselves. Today the preconditions are surprisingly disconnected from the liability determination. Liability follows from a finding that the preconditions are satisfied only slightly more often than it would follow from a coin flip.

All this suggests that the Supreme Court’s effort to provide an objective test for identifying minority vote dilution has been largely unsuccessful.115 The lack of success is important for ongoing debates about the structure of the Voting Rights Act. Recently, both Congress and the Supreme Court have confronted legal issues relating to how rule‐like the Act should be. In 2006, Congress amended Section 5 of the Act to make more rigid the test for measuring minority political opportunity. 116 Similar changes may soon follow for Section 2. A case currently pending before the Supreme Court raises the question of whether prong 1 of the Gingles preconditions (which requires minority voters be “sufficiently numerous” in the area where they claim a violation) should be made even more rule‐like—by requiring minority voters to constitute at least 50 percent of the voting age population of the district whose creation they seek under Section 2.117 Our results show that these changes might help suppress ideological disagreements among judges, even if these disagreements continue to beset the public conversation about voting rights. But to the extent changes to Section 2 or Section 5 do cabin ideological disagreements, they may also make it more difficult for lower courts to adjust the Act to changing social conditions.

This paper is important on its narrow topic, but even more significant for its attempt to integrate theoretical constructs derived from general jurisprudence into the judicial behavior literature.  Highly recommended!  Download it while its hot!

Tamanaha on Legal Realism

Brian Z. Tamanaha (St. John's University - School of Law) has posted Understanding Legal Realism on SSRN. Here is the abstract:

Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, "We are all realists now." Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, "They were all realists then too." What was said about judging at the time "a full century ago" sounds exactly like what is said about judging today.

The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that "A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group." Llewellyn also wrote that "Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell." Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about.

The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to "The Bogus Tale About the Legal Formalists" (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.

And from the text:

Although Llewellyn gleefully exposed the manipulability of precedent and the openness of statutory interpretation, he consistently retracted the most radical implications of these observations, cautioning that “while it is possible to build a number of divergent logical ladders up out of the same cases and down again to the same dispute, there are not so many that can be built defensibly [Llewellyn’s emphasis]. And of these few there are some, or there is one, toward which the prior cases definitely press. Already you see the walls closing in around the judge.”189 A skilled lawyer asked to predict the fate of a case on appeal, Llewellyn conjectured, ought “to average correct prediction of outcome eight times out of ten, and better than that if he knows the appeal counsel on both sides or sees the briefs.”190 When identifying the sources of this high degree of reckonability, Llewellyn elaborated on several “steadying factors”: judges are indoctrinated into the legal tradition such that they “see things…through law spectacles;”191 much legal doctrine—including rules, principles, and statutes—is reasonably clear and well developed;192 judges follow accepted doctrinal techniques, strive to produce a just result, and strive to come up the right legal answer;193 judges sitting together on an appellate bench interact “to smooth the unevenness of individual temper;”194 and the judges’ desire and commitment to live up to the obligations of the judicial role, to earn the approval of their legal audience for appropriate judicial behavior, and their desire to avoid reversal by a higher court, prompts judges to engage in a good faith effort to conduct an unbiased search for the correct legal result.195

The realists, to be sure, harped on the various limitations of and room to maneuver allowed by legal rules, principles, statutory interpretation, stare decisis, and the finding and stating of facts in judicial decision making. But their position is easily misunderstood if their target is not kept in mind: They were attacking the notion that judging merely entailed the logical application of legal rules and principles. Their refutation of this view—a straw man, as it was196—did not mean that they embraced its polar opposite: the notion that legal rules and principles do not have a significant role in judges’ decisions.

This piece and its companion (see above) are absolutely essential.

Highly recommended. Download it while its hot!

Tamanaha on the Bogus Story of Legal Formalism

Brian Z. Tamanaha (St. John's University) has posted The Bogus Tale About the Legal Formalists on SSRN.  Here is the abstract:

It is widely accepted that legal formalist views dominated at the turn of the last century: judges, legal academics, and lawyers purportedly believed that law was comprehensive, gapless, and logically ordered, and believed that judges reasoned mechanically or deductively from this body of law to produce right answers in individual cases. This view of law held sway until the 1920s and 1930s, when the legal realists destroyed formalist beliefs by exposing gaps and indeterminacy in law, and by arguing that bias infects judging.

This story has been repeated innumerable times by legal historians, legal theorists, political scientists, and many others. The formalist-realist antithesis shapes contemporary views and debates about judging.

This familiar story is false. A previous draft, The Realism of the Formalist Age, showed some of the evidence for this, but inadequately and without understanding its full implications. This completely revised version expands on the evidence and explains how the story got started, why it is fundamentally wrong, and how it nonetheless successfully secured a place in conventional accounts of US legal history. Through a combination of mistakes and deliberate deceptions, the initial piece of the story was constructed early in the century by political opponents of courts. In the 1970s, motivated by contemporary concerns, leftist legal historians and legal theorists reached back to the earlier period and reinvented the story about the legal formalists, producing an account which then swept the legal academy. This false story has been taken as true ever since.

This article is not just about getting our history right. It provides an object lesson in how modern practices of legal history and legal theory - how reliance upon specialists, and the adoption and repetition of stock stories - can lead to the spread and perpetuation of a falsehood, with real consequences.

And from the text:

Every account of the formalists and their belief in “mechanical jurisprudence,” it turns out, has been written by critics like Roscoe Pound and Jerome Frank, and by modern historians and theorists relying upon their accounts. As legal theorist Tony Sebok observed, “Formalism, so to speak, does not really have an identity of its own: As a theory of law, it exists only as a reflection of scholars like Holmes, Pound, Llewellyn, and Frank.”19 Although Pound repeatedly claimed that turn-of-the century judges and lawyers, influenced by legal science and prevailing jurisprudential theories, widely believed that judging was an exercise in mechanical deduction, he offered no quotes or citations to that effect by anyone who actually espoused this purportedly dominant view of judging. The main authority Pound identified for this set of beliefs came from German legal scholars discussing German legal science.20 This pattern shows up repeatedly in writings about the formalists.

And:

The seminal originating piece in the creation of the image of judging as an exercise in mechanical, deductive reasoning was Roscoe Pound’s 1908 article, “Mechanical Jurisprudence.” Pound began his inquiry by posing the question: “What is scientific law?”127 To which, he answers: “the marks of a scientific law are, conformity to reason, uniformity, and certainty. Scientific law is a reasoned body of principles for the administration of justice, and its antithesis is a system of enforcing magisterial caprice, however honest, and however much disguised under the name of justice or equity or natural justice.”128 The danger of scientific law, Pound warned, is a “petrification” which “tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and so to impose the ideas of one generation upon the other.”129 Contemporary U.S. law, Pound claimed, was mired in this state: “the jurisprudence of conceptions tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition against which sociologists now protest, and protest rightly.”130 He argued that historical jurisprudence and analytical jurisprudence, the main legal theories of the day, exacerbated this stultified approach because they tended to emphasize abstract concepts and logical analysis.131

As an example of conceptual jurisprudence, Pound offered the infamous Lochner (and Adair) case, in which the Supreme Court invalidated as a violation of the freedom of contract a New York law limiting the working hours of bakers to no more than 10 hours a day and six days a week.132 “The conception of freedom of contract is made the basis of a logical deduction” wrote Pound. “The court does not inquire what the effect of such a deduction will be, when applied to the actual situation.”133 With courts paralyzed in this state of mechanical jurisprudence, Pound argued, the only solution was for legislation to provide new starting points for the common law.134

Pound’s Mechanical Jurisprudence picked up on themes pressed a few years earlier by Oliver Wendell Holmes. In The Path of the Law (1897), one of the most famous legal articles ever written, Holmes took as his target the “fallacy” “that the only force at work in the development of the law is logic.”135 “The danger of which I speak is…the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms.”136

This Section will produce evidence that, contrary to what Pound and others have asserted (and Holmes implied), lawyers, academics, and judges at the time did not widely believe that judging was an exercise in mechanical deduction. Before moving to examine the evidence, it is worth noting once again that when setting out his portrayal of mechanical judging Pound quoted no actual “formalists” making these claims, and he made repeated references to German jurists discussing German legal science.137 It is also essential to recognize that the image of mechanical, deductive judging was deprived of its main conceptual underpinning in the preceding Section. The earlier quotes from Pound, Haines, Frank, and Gilmore all tied the mechanical view of judging directly to the traditional view of the common law (updated in terms of legal science): judges purportedly reasoned mechanically from—and were able to do so because—the law pre-existed in a comprehensive, gapless, logically ordered complex of rules and principles. If most people in legal circles did not in fact believe in this classic theory of the nature of law (updated to law as science), the theory of deductive judging loses its mooring.

And finally:

Almost without warning,298 a cluster of articles from important legal historians and legal theorists discussing the “legal formalists” and “legal formalism” arrived in the mid-1970s. Gilmore’s Ages of American Law was published in 1977, preceded by the publication of an advance synopsis in the 1975 Yale Law Journal.299 Morton Horwitz published “The Rise of Legal Formalism,” also in 1975, in the American Journal of LegalHistory.300 Duncan Kennedy published a theoretical analysis entitled “Legal Formalin the 1973 volume of the Journal of Legal Studies.301 William Nelson extensively elaborated on the rise of legal formalism in connection with antislavery cases in a 1974article in the Harvard Law Review.302 Legal formalism was a central theme in JusticeAccused, Robert Cover’s book on judicial treatment of slavery cases.303 All of these scholars worked at elite law schools (Harvard, Yale, and Pennsylvania), and all were politically on the left. Kennedy and Horwitz were founding members of the Critical Legal Studies Movement, which mounted a radical critique of liberal legalism from the late 1970s through the the 1980s.

There is undoubtedly a connection between this sudden critical attention to legal formalism and the searing political events of the 1960s and 1970s—when universities anlaw schools were wracked by civil rights and anti-war protests. Cover drew the linkhis Acknowledgements, mentioning that his book was inspired by a comparison of“judicial complicity in the crimes of Vietnam” with “judicial acquiescence in the injustices of Negro slavery.”304 Among the left, it was a time of seething skepticism about law.305 The student editors of the Harvard Law Review wrote in 1970 that “It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry. It is also important to note that pure logic doeoffer a solution to all [legal] problems.”306 Little imagination is required to see the parallels between these attitudes and the forthcoming preoccupation with legal formalismIn the closing Chapter of Ages of American Law, Gilmore argued that the 1970s were ushering in a “New Conceptualism” resembling that of the formalist age. “In our own history, both in the late nineteenth century and in our own time,” he wrote, “the components of the formalist approach have included the search for theoretical formulas assumed to be of universal validity and the insistence that all particular instances should be analyzed and dealt with in the light of the overall theoretical structure.”307 A group of scholars deeply disaffected at the law in the 1970s reached back to the work of the previous episode of disaffection (Pound and the legal realists) to resurrect a portrait of what was perceived to be a common enemy.

Once again, a must read from Tamanaha, who has produced a compelling case for a pattern of distortion in writing about "legal formalism."  Tamanaha's work suggests that we all need to rethink fundamental assumptions about the development of legal thought.

Highly recommended.  Download it while its hot!

Horizontal Stare Decisis in Canada

Check out Is Stare Decisis fo suckas? at Pith and Substance. A taste:

How should a final court regard its past decisions in constitutional law?

There have already been two constitutional decisions this year which rather dramatically (and, to be fair, quite forthrightly) demolished important twenty-year-old precedents.

And a bit more:

I give the Court credit for being honest that it was overruling the past decisions. At the same time, this is a bit troubling. Conventionally, a court decision counts as an authority for the future -- not just for lower courts, but for coordinate courts. This is the doctrine of horizontal stare decisis, well-defended by Larry Solum here. What is remarkable is that there is no real attempt by the Court to grapple with this issue. They just give reasons for their decision as if the previous decision had never occurred, or they were dissenting from it for the first time. No consideration was given to the Court's statements about when it will reform the common law,

Tamanaha on Formalism

Check out Brian Tamanaha's post entitled Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely) over at Balkinization.  Here is a taste:

After decades of ideological screening of judicial candidates, the bulk of judges on the Supreme Court and on lower federal courts are political conservatives. Liberals have responded to this by proposing ways to limit judicial power (abolish judicial review, establish age or term limits for judges, etc.), by lobbying against far right appointees during the confirmation process, and by hoping for electoral victories and a liberal President who will achieve a liberal makeover of the bench. Good luck!

Liberals should consider a different approach: retake the high road and insist that judges should rule according to the law. Rather than ridicule formalistic statements by conservative judges, let’s applaud them, then hold the judges to their avowed legal formalism, vociferously criticizing decisions that appear to be politically driven (remember Bush v Gore!), condemning violators as hypocrites and offenders of the rule of law. I fervently hope that Justices Scalia, Thomas, Roberts and Alito do not decide cases based upon their political views. Legal formalism stands against this as well.

For these reasons (which are not my reasons, as I will indicate momentarily), liberals should give legal formalism a serious second look. Were it not for the long association of formalism with conservatism, the influence of Legal Realism (ramped up by CLS) (supplemented by social scientific studies of ideology in judging), and the conservative bent of original meaning theory, the benefits of a rapprochement with legal formalism would be obvious to liberals. But few liberals have dedicated sustained efforts to developing a sound understanding of legal formalism, and the subject has not drawn much attention in jurisprudence (with the notable exception of old work by Frederick Schauer).

Tamanaha has some interesting comments on my recent article, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, which argues for a neoformalist constitutional jurisprudence that incorporates a very strong doctrine of horizontal stare decisis, even for the Supreme Court.

Tamanaha on Law & Ideology

Check out Brian Tamanaha's Distinguishing Law From Ideology in Judicial Decisions on Balkinization.  Here's a taste:

Imagine two judges, both with politically conservative personal views: One decides cases with a conscious orientation that strives to abide by the binding dictates of applicable legal rules to come up with the most correct legal interpretation in each case (the Consciously Bound judge, CB); a second judge decides cases with a conscious orientation that strives to achieve ideologically preferred ends in each case, and interprets and manipulates the legal rules to the extent necessary to achieve the ends desired (the Consciously End-Oriented judge, CEO).

Add four realistic conditions to this scenario. First, notwithstanding having a legally bound conscious orientation, CB is subconsciously influenced by and sees the law through background personal views; the legal interpretations of CB are thus not completely free of political influences in this subconscious sense. Second, CEO is not able to achieve ends with total disregard for conventional legal understandings because the decisions must be legally plausible and have the external appearance of being rule bound. Third, in a large (but not total) subset of cases the law does not clearly point to a single outcome, though usually one outcome can be ranked as more legally compelling or defensible than others. Finally, in a subset of cases, the legal rules are open (no particular outcome can be ranked above any other) or they invite the judge to render a judgment based upon non-legal factors.

Now, imagine that, in a given case, both judges arrive at precisely the same (politically conservative) outcome, supported by identical written decisions; they would have joined opinions had they served on the same panel. They are led to the same result and use the same reasoning because they adopt the same theory of constitutional interpretation. The difference is that CB settles upon the theory as the correct way to interpret the Constitution following a sincere and exhaustive study of constitutional law, whereas CEO settles upon the theory because it tends to support the outcomes the judge personally prefers, and CEO is willing to depart from or “adjust” the theory when necessary to achieve a desired end in particular cases.

Interestingly, a behaviorist study would code these two cases in exactly the same way: as a legal decision that aligns with (and hence can be explained by) their conservative political ideologies. Indeed, by all external appearances the decisions are exactly the same. Yet this misses fundamental differences in their reasoning processes and in the contrasting way they would be normatively judged by others. CB is acting in a rule bound fashion, consistent with the duty of judges within our system, while CEO is abusing his power as a judge by engaging in a manipulative (insincere) interpretation of the law to advance a desired political end.

And while you are at, also take a look at Brian's Judge Posner's Seductive Realism and Pragmatic Adjudication--Beware the Pied Piper. Truly excellent blogging!

Solum on Constitutional Stare Decisis

Lawrence B. Solum (University of Illinois College of Law) has posted The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights on SSRN. Here is the abstract:

This essay advances a formalist conception of constitutional stare decisis. I shall argue that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework—a revival of formalist ideas in legal theory that I shall call “neoformalism” to distinguish my view from the so-called “formalism” caricatured by the legal realists (and from some other views that are called “formalist”).

In Part II, The Critique of Unenumerated Constitutional Rights, we set the stage by briefly recalling why the unenumerated rights precedents are under theoretical (and political) siege. Then, in Part III, Neoformalism, Stare Decisis, and the Rule of Law, we examine the jurisprudential roots of a formalist revival that would create theoretical space for the idea that the Supreme Court should regard itself as bound by precedent. In Part IV, A Neoformalist Conception of Constitutional Stare Decisis, that theoretical framework is deployed to develop the outline of a neoformalist theory of constitutional stare decisis. This conception is brought down to earth in Part V, which answers the question posed by its title: Does the Neoformalist Conception of Constitutional Stare Decisis Support Contemporary Unenumerated Rights Jurisprudence? We wrap it all up in Part VI, Unenumerated Rights and the Future of Constitutional Doctrine.

Comments are welcome, as always.

Balkin on Original Meaning and Abortion

An important paper.  Jack Balkin has posted Abortion and Original Meaning on SSRN.  Here is the abstract:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

Balkin's thinking about original meaning has moved theoretical debates forward in interesting and important ways.  Highly recommended.

A Neoformalist ManifestoIntroduction It started

A Neoformalist Manifesto

Introduction It started with a findlaw column by Edward Lazarus on the theme of judicial intergrity. I responded with a post entitled: Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, and Matthew Yglesias endorsed some of my remarks. Sunday morning Jack Balkin responds in a post that I urge you to read--awesome. In this post, I respond to Jack Balkin's critique and provide A Neoformalist Manifesto. So here goes.
Neoformalism: What? Labels are tricky. "Formalism" is one of the labels that is most often used by instrumentalist critics of the idea that judging can proceed on the basis of public rules that have relatively stable and determinate meanings. Tom Grey has a very good paper entitled, "The New Formalism," that provides a marvelous but critical discussion of renaissance of formalism in contemporary American legal thought. And when I outted myself as a "formalist" on this blog in January, I titled the post Confessions of Neoformalist to distinguish my views from the "formalism" that we all "know" was impossibly simplistic and wrongheaded. By "neoformalism," I simply mean an up-to-date version of formalism that takes into account contemporary legal theory and reformulates formalist notions so as to acknowledge both American legal realism and sophisticated analytic legal philosophy--especially the important line of thought that runs through Hart-Raz-Dworkin-Finnis and many others.
Neoformalism: Why? This is a deep and important question--obviously an adequate answer is far beyond the limits of a single post on a blog, but there is a central theme that can be stated simply and concisely. Neoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. On the one hand, the rule of law serves a cluster of instrumental purposes. Neoformalist judging makes the law more predictable and certain--allowing individuals and firms to plan. Neoformalist judging also avoids the long-run problems that can be created by the politicization of the law. When the law becomes thoroughly politicized, it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent-seeking and patronage. On the other hand, the rule of law provides an important set of protections for human liberty and basic human rights. Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law. I know that these arguments are impossibly sketchy, but that's the best I can do in a paragraph.
Neoformalism: How? How would a neoformalist practice of judging work? In my post on Saturday, I offered a very brief sketch. For the purposes of illustration, I will discuss only constitutional cases. I do this for two reasons. First, because widening the scope of discussion to include common-law adjudication, statutory interpretation, and administrative law would make even a bare sketch unbloggable. Second, because constitutional interpretation is thought to be a difficult case for formalists. I began my brief sketch with by saying, "first and foremost judges should follow the rules laid down.," and I followed that with a set of guidelines that neoformalist judges might follow in constitutional cases. Let's try to present those more formally, as a set of principles, which are lexically ordered:

Principle One, Precedent: Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Among the features of such a doctrine is that even courts of last resort (i.e. the United States Supreme Court) should regard their own decisions as binding, unless there is a compelling reason to do otherwise.
Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.
Principle Three, Intratextualism and Structure: When the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consistent with other related provisions and with the the structure of the Constitution as a whole.
Principle Four, Original Meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters), (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. (Adapting Grice's formulation of speaker's meaning.)
Principle Five, Default Rules: And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. (And in this post, I will only offer a promissory note with repsect to the content of such principles.)
Principle Six, Lexicality and Holism The first five principles are to be understood as lexically ordered in the following sense. Judges should order their deliberations by the first five principles--attempting to structure their conscious deliberations by attending to the features highlighted by each each principle in order before proceeding to the next principle. But this requirement does not entail that judges either will not or should not recognize that the considerations thematized by one principle may be relevant to deliberations explicitly organized by another principle. Thus, the interpretation of a precedent will sometimes (perhaps always) require consideration of the text, structure, and original meaning, and so forth. (Lexical ordering is a guideline for structuring deliberation, and is not inconsistent with the observation that interpretation involves what Gadamer called the hermeneutic circle.) These are principles not rules, and lexical ordering operates a methodological heuristic and not as a rigid rule.

It goes without saying that this is a simplified theory of constitutional interpretation. It is offered for the purpose of pointing in the direction of a more fully-developed neoformalist theory of judging.
Neoformalism: Who? A neoformalist methodology is a necessary but not a sufficient condition for realization of the rule of law. Even the most elaborately detailed set of methodological principles would be of no avail, if applied by judges who aimed to bend the method to the goals supplied by their political ideology. For this reason, a neoformalist theory of judging is incomplete without a complimentary account of judicial character--of the judicial virtues and vices. To adumbrate this aretaic turn, for neoformalist to work, judges must be selected for thier possession of the following virtues, among others:

--Judicial Courage. Judges must not be so fearful of their social position or reputation that they are unwilling to do what the law requires, even when it will be unpopular.
--Judicial Temperance. Judges must have their desires in order--in order to avoid the temptations that can lead to corruption. The phrase "sober as a judge" reflects the recognition of this fact in folk jurisprudence.
--Judicial Intelligence. Judges need to be pretty smart, because the law is frequently complicated or obscure. Moreover, a good judge must be "learned in the law."
--Judicial Wisdom. Sound rule application requires legal vision--the ability to recognize the legally salient features of a choice situation. Rules do not apply themselves, and only a judge with the virtue of phronesis or practical wisdom will consistently apply the rules in a sensible way.
--Justice. Judges must posesse the virtue of justice--the disposition to decide in accord with the law, as opposed to whim, partiality, bias, or political ideology.

Let me repeat an important point--the laws do not apply themselves and correlatively the constitution does not interpret itself. Bad judges can make a mess of the best system of rules. Corrupt judges can depart from even the clearest rule. Political judges can bend the law to their own ends. But stupidty, corruption, and politicization are not inherent features of human nature. Judicial virtue is possible, and many judges on the bench today are virtuous. Neoformalist depends on these facts.
The Virtue of Justice

Balkin's Brilliant Argument And this brings me back to Balkin's primary challenge. Balkin raises exactly the right objection. He makes the right move. He focuses the debate on the crucial issue: what is the virtue of justice? I will explain after I quote Balkin's formulation of the objection:

Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.
Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down."

Oh, man! Am I in trouble now. Balkin has chosen his example with care. It seems to put me on the horns of an inescable dilemma. Either I agree that the gender equality decisions were wrong when originally decided--showing that I am against equality for women (and putting me in very bad company) or I try to argue for the Supreme Court's gender equality jurisprudence on neoformalist grounds. But if I grasp the second horn of the dilemma and try to argue that neoformalism supports the gender equality decisions, then I will open the door for Balkin to show that I am really a neorealist in disguise. Now, I am sweating. How will I get out of this?
Biting the Bullet So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.
The Flip Side And it is important to remember that there is a flip side of Balkin's argument. It is an accident of history that Balkin and I are debating these issues in 2003. In the long run of American history, the Warren and Burger courts are not the rule, they are the exception. The judicary is not usually the vanguard of progressive politics. The judiciary is usually a force for conservative values and entrenched interests. Balkin argues for constitutional change through what he calls high politics (see Balkin here, my satirical critique here, and Balkin's reply here.) But high politics can be practiced by the left and the right, by the progressives and conservatives, by the friends and foes of women's equality. If you read Balkin's full post, you will find that he argues that the Supreme Court's gender equality jurisprudence cannot be supported by precedent, text, structure, or original meaning. Balkin argued that the only justification for the gender equality decisions was "high politics." This is very, very important. So Balkin's theory argues that high political judicial decisionmaking is justified even when the decisions run contrary to the precedents, text, and original meaning of the Constititution. And hence, Balkin is committed to the proposition that high political decisions overruling Roe v. Wade or Brown v. Board or even the very genderal equality decisions he endorses would be legitimate. Legitimate, not right. Balkin can argue that the high politics that would lead to these results would be bad high politics. But he cannot argue that it would be illegitimate high politics. By way of contrast, neoformalism leads to the conclusion that it would be illegitimate to overrule Roe, Brown, or the gender equality decisions for political reasons. If Balkin's theory were followed, then the progressive decisions he treasures can be blown away by a shift of the high-political winds (the jet stream of politics). If neoformalism were to prevail, then the progressive decisions he treasures and many Rehnquist Court decisions he dislikes would both be protected from high political hurricanes and tornados. Of course, neoformalism does not require precedents to remain unaltered forever. A gradual process of case-by-case adjustment can lead even neoformalists to the conclusion that a precedent has become bad law.
The Downside of High Politicization But the flipside is not the real downside of Balkin's theory. The real downside of "high politics" is that it poses a fundamental threat--over the long run--to the rule of law. Balkin is a master rhetorician and a brilliant argumentative tactician, but even he cannot disguise the true nature of his position. Balkin's fundamental position is that the judges should make political decisions in constitutional cases, even when those decisions cannot be justified by precedent, text, or history. Balkin knows that many readers (especially those outside of the legal academy and departments of political science) will have great difficulty swallowing this radical position. So he tries to sugar coat it. Here is what he says:

Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.

Stunning! Stunningly audacious, that is. By the wave of his magic wand, Balkin transforms decisions that would be understood as lawless by any conventional understanding of the norms of judicial craft into decisions made "according to law." Black is white. Up is down. Left is right. Law is politics. But a rose by any other name would smell as sweet. High politics are politics, nonetheless. High politicization may seem attractive in the short run, but where will it lead in the long run?
The Downward Spiral of Politicization Actually, high politics might not be such a bad thing in a society with a strong and stable consensus on matters of fundamental value. In such a society, judges would rarely need to strike down legislation on the basis of high political decisionmaking. And when high politics were called for, there would be little disagreement on the bench--since the judges would all share the same political ideology. But we don't live in that kind of polity. As Balkin recognizes, high politics are highly contentious in our current circumstances. Moreover, we are closely divided on a variety of issues with constitutional dimensions. If we live in Balkin's world, then high political ideology becomes the primary criterion for selecting judges--and as a result we get confirmation wars--so long as neither party controls both the Presidency and the Senate. If one party does gain control of both institutions, then it becomes in that party's self-interest to do their best to pack the federal judiciary with ideological judges who will vote for the party's high political preferences when on the bench. Decisions that disregard precedent, text, and history are legitimate--so long as they have high political rationales. Even lower court judges can get into the game. Why not construe Supreme Court precedents very narrowly--if they conflict with your own high political preferences? The Supreme Court can attempt to retaliate with summary reversals, but given the limits of the Supreme Court as an institution, it is inevitable that determined trial court and appellate court judges will be able to circumvent the will of the Supreme Court a great deal of the time. And down the spiral we go. The confirmation process becomes increasingly contentious and bitter. Justices snipe at one another, with colleague accusing colleague of blatantly political decision making. In this atmosphere, will the distinction between high politics and low politics remain inviolate. Will the parties refrain from nominating and confirming low-political judges if they get the chance? Will judges who began their careers as high politicians refrain from low politics once it becomes clear that "Law is the continuation of politics by other means." Does any of this sound familiar?
How Low Can You Go? Very Low! And where is the bottom of a downward spiral of politicization? Where does this all end? We need not avail ourselves of science fiction or possible worlds to answer this question, because the world of a thoroughly politicized judiciary is all too familiar from human history and comparative jurisprudence. A thoroughly politicized judicary offers no protection for human rights when the judges are aligned with the ruling regime. A thoroughly politicized judiciary views every case as an opportunity for patronage and political favortism. And when the rule of law goes, the piper will be paid in more than the currency of human rights. Without the rule of law, the transparency of markets begins to erode and eventually markets begin to collapse. Of course, there are stopping points on the slippery slope short of the complete breakdown of the rule of law. Most significantly, as the rule of law begins to erode the costs begin to become apparent, creating political pressures for the reformalization of the judiciary. My point is not that we are doomed. Quite the opposite. It is that we have choices in the here and now. Deescalation is a possibility. Presidents can nominate judges who are dedicated to the rule of law. The Senate can evaluate those nominees on the basis of their possession of the judicial excellences rather than on the basis of their political ideologies. The highly politicized Supreme Court can gradually move towards a more formalist, constrained approach to constitutional interpretation.

The Virtue of Justice Again Aristotle's account of the virtue of justice sometimes sounds quite odd to modern ears. Aristotle believed that possession of the virtue of justice meant the disposition to act according to law--call this justice as lawfulness. Contemporary jurisprudence and political philosophy has been infected by a very different conception of justice. Those of us who grew up or came to political maturity in the Warren and Burger Court eras came to see the virtue of justice as the disposition to do the right thing even when it was contrary to the rule of law--call this justice as fairness. As youthful enthusiasm gave way to more sober understandings, contemporary jurisprudence labored mightily to reconcile these two conceptions, preserving the great value of the rule of law while simultaneously endorsing the authority of judges to do what we believed was so clearly righteous even in the face of contrary precedents, text, and history. Elaborate theoretical edifices were constructed--some of them stunningly brilliant in their architecture and execution. Ronald Dworkin's theory of law as integrity is one of those efforts. Jack Balkin and Sandy Levinson's theory of constitutional adjudication as high politics is another. And Bruce Ackerman's hugely ambitious version of popular sovereignty theory is yet a third. These are powerful theories, intricately constructed and defended with deep knowledge, clever argument, and convincing rhetoric. But in the end, even our most brilliant theorists have been unable to overturn fact with argument. A constitutional decision that cannot be justified by precedent, text, or history is not a decision according to the rules laid down. The rule of high politics is not the rule of law.
A Category Mistake And that, I think, is why these theorists frequently slide between the normative and the explanatory. Because Jack Balkin is right. You cannot explain constitutional change with a normative neoformalist theory of judging. That would be a category mistake, as Balkin well knows. I can well believe that our constitutional history involves theories like Balkin and Levinson's, Dworkin's, or Ackerman's in an explanatory role. More crudely, of course, Balkin is right. Of course, we can only explain the Warren and Burger Courts by bringing politics into the picture. But that isn't a normative argument. "Ought" implies "can," but "is" doesn't imply "ought."
The Bitter Truth Oh, how I yearn for my optimistc faith that fairness was lawfulness. Oh, how much I want it to be that case that the Constitution is perfectly just. Oh, how I long for the theory that would make this so. Oh, how I wish that my high politics were the law of the land. As a law student, I believed with all my might that it was so. And every once in a while I am able to talk myself into believing once again--although sadly, I find that these glorious moments grow shorter and shorter, fewer and fewer. These days my mouth is full of bitter truth.