Posted by Randy Barnett:
Progressive Formalists?
http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167770280
A very interesting post by Brian Tamanaha on Balkinization, entitled,
[1]Fellow Liberals: Be a "Legal Formalist," Join the Recovering
Realists Club (Small Meetings Likely). Read the whole thing, but here
is how it ends:
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.)
What with Jack Balkin now advocating a version of original meaning
originalism (I will be uploading a reply on SSRN to his [2]Abortion
and Original Meaning soon), this may be the harbinger of a very
interesting trend among legal academics.
BTW, Brian has a new book out that I am looking forward to reading
entitled, [3]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.
References
1. http://balkin.blogspot.com/2006/12/fellow-liberals-be-legal-formalist.html
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925558
3. http://www.amazon.com/Law-Means-End-Threat-Context/dp/0521689678
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