What with Jack Balkin now advocating a version of original meaning originalism (I will be uploading a reply on SSRN to his Abortion and Original Meaning soon), this may be the harbinger of a very interesting trend among legal academics.Finally, I must preempt a misimpression that might be created by the tenor of this post, which has articulated reasons why liberals should take legal formalism seriously. Although I am a liberal, those are not my reasons for doing so. I genuinely believe that the rule of law is essential to our society. Liberals and conservatives disagree about much, but on recognizing the signal importance of the rule of law we should be united. At the core of the rule of law is legal formalism, especially legal formalism by judges. For this reason:
“My name is Brian Tamanaha and I am a legal formalist.”
(Yuck, that was not an easy statement to make—try it and see.)
BTW, Brian has a new book out that I am looking forward to reading entitled, Law as a Means to an End: Threat to the Rule of Law. Here is the publisher's description:
The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.
Comments