“The United States legal culture has swallowed whole a largely false account of our legal history,” writes Brian Tamanaha at Balkinization

Over at Balkinization, Brian Tamanaha describes his book Beyond the Formalist-Realist Divide as a corrective to this “largely false account”. Click through to read more, but here’s a tidbit or two:

The United States legal culture has swallowed whole a largely false account of our legal history. The book demonstrates that this false yet widely believed story has warped political science research on courts as well as legal theory debates about judging.

The historical argument in the book will likely generate controversy, for the conventional formalist-realist narrative has many expositors and defenders. It is stupefying to think that we could have been collectively wrong for so long about something so important and well known. Until conducting the research for this book, I too believed that it was true. The abundant evidence I present to show that it is false will come as a shock to many.


  1. Lee S. McCullough, III says:

    A review of case law can be misleading because it ignores the fact that most cases settle out of court. I am an asset protection attorney and many people criticize certain asset protection trusts because there is not much case law supporting them. But I have had many of these tested and they always hold up great. In fact, they hold up so well that they never go to trial. The only cases that go to trial are the ones that involved fraud or some kind of unethical situation where the client tries to hide assets after he gets sued. In those cases, a judge will usually find a way to get to the asset. So a review of the cases looks like this type of planning is not effective, but that is entirely misleading