Legal Formalism Legal Realism and The Interpretation of Statute
Legal Formalism Legal Realism and The Interpretation of Statute
Legal Formalism Legal Realism and The Interpretation of Statute
Volume 37 | Issue 2
1986
Recommended Citation
Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179
(1986)
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Case Western Reserve Law Review
Volume 37 1986-87 Number 2
INTRODUCTION
1. Posner, The Meaning of Judicial Self-Restraint, 59 IND. L.J. 1 (1983), revised and
reprinted in R. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 198 (1985).
2. The extensive literature on legal realism and legal formalism is well summarized in
Comment, Formalist and InstrumentalistLegal Reasoning and Legal Theory, 73 CALIF. L.
REV. 119 (1985). On formalism, Grey, Langdell's Orthodoxy, 45 U. Prrr. L. REV. 1 (1983),
is particularly good. On realism, see the authoritative collection of readings in Dennis J.
Hutchinson, History of American Legal Thought II: The American "Legal Realists" (Uni-
versity of Chicago Law School, mimeo., 1984), and the excellent brief summary in Altman,
Legal Realism, CriticalLegal Studies, and Dworkin, 15 PHIL. & PUB. AFF. 205-14 (1986).
For an effort, somewhat parallel to my own, to relate formalism, realism, and interpretation
see Moore, The Semantics of Judging, 54 S. CAL. L. REV. 151 (1981).
3. I plead guilty to vague use of "formalism" and "realism" throughout THE FEDERAL
COURTS, supra note 1.
1986] FORMALISM, REALISM, AND INTERPRETATION
6. See C. LANGDELL, A SUMMARY OF THE LAW OF CONTRACTS 1-3 (2d ed. 1880).
7. See R. POSNER, ECONOMIC ANALYSIS OF LAW 89-90 (3d ed. 1986). In fairness to
Langdell, I must point out that, considering when it was written, Langdell's treatise on con-
tract law is a splendid piece of legal analysis, unjustly maligned by Oliver Wendell Holmes in
an anonymous review, see 14 AM. L. REV. 233, 234 (1880) (Langdell is 'the greatest living
legal theologian") and more recently and less elegantly by Grant Gilmore, G. GILMORE, THE
DEATH OF CONTRACT 13 (1974) ("To judge by the casebook and the Summary, Langdell
was an industrious researcher of no distinction whatever either of mind or... of style.").
8. See, e.g., I H. WI.LIAMS & C. MEYERS, OIL AND GAS LAW § 203, at 26-28 (1985)
(discussing the application of the rule of capture to oil and gas).
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12. Letter to John C.H. Wu, in THE MIND AND FAITH OF JUSTICE HOLMES: HIS
SPEECHES, ESSAYS, LETrERS AND JUDICIAL OPINIONS 419 (M. Lerner ed. 1943).
13. For example, Holmes agreed with Langdell that someone who returned a lost article
without knowledge of the reward was not entitled to claim the reward, because the offer of
the reward had not induced the return. See O.W. HOLMES, supra note 10, at 294. See also G.
GILMORE, supra note 7, at 19-21. The notion that Holmes, by using formalist reasoning,
showed he was not really a realist, reveals the potential for confusion in the use of these
terms.
14. See, e.g., W. LANDES & R. POSNER, THE ECONOMIC STRUCTURE of: TORT LAW
(forthcoming, Harvard University Press, 1987); R. POSNER, supra note 7, 3-55.
CASE WESTERN RESERVE LAW REVIEW [V/ol. 37:179
common law from the verbal formulas in the judicial opinions that
create it. A common law doctrine, however, is no more textual
than Newton's universal law of gravitation. The doctrine is inferred
from a judicial opinion, or more commonly a series of judicial opin-
ions, but it is not those opinions, just as Newton's law is learned
from a text but is not the text itself. Decision according to prece-
dent means decision according to the doctrines of the common law,
not according to specific verbal expressions of those doctrines.
Statutory and constitutional law differs fundamentally from
common law in that every statutory and constitutional text-the
starting point for decision, and in that respect (but that respect
only) corresponding to judicial opinions in common law decision-
making-is in some important sense not to be revised by the judges.
They cannot treat the statute as a stab at formulating a concept
which they are free to rewrite in their own words.1 5 This might
seem to entail just that formalist reasoning in statutory or constitu-
tional law would be deduction from a text and therefore would be
possible as long as the text was as precise as a common law concept.
But there is no such thing as deduction from a text. No matter how
clear the text seems, it must be interpreted (or decoded) like any
other communication, and interpretation is neither logical deduc-
tion nor policy analysis. The terms formalism and realism as I have
defined them thus have no application to statutory or constitutional
law, except, as I have said, when the framers' command is simply
that the judges go out and make common law.
A conclusion obtained by deduction is already contained in the
premises in the sense that the only materials used to obtain the con-
clusion are the premises themselves and the rules of logic. But
meaning cannot be extracted from a text merely by taking the lan-
guage of the text and applying the rules of logic to it. All sorts of
linguistic and cultural tools must be brought to bear on even the
simplest text to get meaning out of it. This is not to suggest that all
texts are ambiguous. A text is clear if all or most persons, having
the linguistic and cultural competence assumed by the authors of
the text, would agree on its meaning. Most texts are clear in this
sense, which is the only sense that captures the meaning of the word
"clear" as applied to texts.
I shall illustrate the distinction between logic and interpretation
15. See, e.g., E. LEvI, AN INTRODUCTION TO LEGAL REASONING 6-7, 28-30 (1949);
Simpson, The Ratio Decidendi of a Case and the Doctrine ofBinding Precedent, in OXFORD
ESSAYS IN JURISPRUDENCE 148, 165-67 (A.G. Guest ed. 1961). Hart and Sacks imply a
contrary view, which I consider later. See infra text accompanying note 19.
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
16. "[N]either shall any Person be eligible to that Office who shall not have attained to
the age of thirty five Years ...." U.S. CONST. art. II, § 1, cl.5.
17. See Peller, The Metaphysics ofAmerican Law, 73 CALIF. L. REV. 1151, 1174 (1985);
Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S.CAL. L. REV.
683, 686-88 (1985).
19861 FORMALISM, REALISM, AND INTERPRETATION
18. For a carefully qualified statement of this view see E. LEvi, supra note 15, at 19-20.
FORMALISM, REALISM, AND INTERPRETATION
and subordinate officers, with the former often being unable to com-
municate clearly with the latter.
19. See 2 H. HART & A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAK-
ING AND APPLICATION OF LAW 1410-17 (tent. ed. 1958).
20. 29 U.S.C. § 151 (1982).
21. See, e.g., 47 U.S.C. § 214 (1982).
22. This position was urged by one of Hart and Sacks' predecessors in the school of
"progressive formalism." See Landis, Statutes and the Sources ofLaw, in HARVARD LEGAL
ESSAYS 213 (R. Pound ed. 1934).
FORMALISM, REALISM, AND INTERPRETATION
23. For recent and comprehensive reviews of this literature see Farber & Frickey, The
Jurisprudenceof Public Choice: Empiricism, Cynicism, and FormalModels in Public Law
Theory, forthcoming in Texas Law Review, and Macey, PromotingPublic-RegardingLegisla-
tion Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223
(1986). For a briefer treatment, see R. POSNER, supra note 7, at 496-98.
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
24. Of course, there is nothing new about interpretive skepticism. See the precocious
work by F. LIEBER, LEGAL AND POLITICAL HERMENEUTICS (enlarged ed. 1839), especially
chapter 5.
25. For inconclusive speculation on this specific question see Bickel, The Original Un-
derstandingand the Segregation Decision, 69 HARV. L. REV. 1, 63-64 (1955). I return to this
issue in the last part of this Article. See infra notes 70-77 and accompanying text.
26. White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at
18 U.S.C. §§ 2421-2424 (1982)).
27. On the legislative history and judicial interpretation of the Mann Act see E. LEvi,
supra note 15, at 33-46.
1986] FORMALISM, REALISM, AND INTERPRETATION
30. See Judge (now Justice) Scalia's concurring opinion in Hirschey v. Federal Energy
Regulatory Comm'n, 777 F.2d 1, 7-8 (D.C. Cir. 1985). Judge Scalia "frankly doubt[ed] that
it is ever reasonable to assume that the details, as opposed to the broad outlines of purpose,
set forth in a committee report come to the attention of, much less are approved by, the house
which enacts the committee's bill" and expressed concern over "the fact that routine defer-
ence to the detail of committee reports ... [is] converting a system of judicial construction
into a system of committee-staff prescription." Id.
31. See, e.g., Easterbrook, Statutes' Domains, 50 U. CHi. L. REv. 533 (1983); R. Pos-
NER, supra note 1, at 223. For notable recent contributions to the growing debate over statu-
tory interpretation see W. Eskridge, Jr., Dynamic Statutory Interpretation in Light of
Changed Circumstances (University of Virginia Law School, mimeo., 1986); Farber &
Frickey, supra note 23.
32. See G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); Easter-
brook, supra note 31.
1986] FORMALISM, REALISM, AND INTERPRETATION
33. 15 U.S.C. §§ 1-7 (1982). See infra text accompanying note 61.
34. Easterbrook, supra note 31, at 552.
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
35. See Sorenson v. Secretary of the Treasury, 106 S. Ct. 1600, 1610 (1986) (Stevens, J.,
dissenting). Justice Stevens cites an amusing New York Times report of the enactment of a
bill, " 'with parts of it photocopied from memorandums, other parts handwritten at the last
minute . . .some final sections hastily crossed out in whorls of pencil marks [and] such
cryptic and acccidental entries in the bill as a name and phone number-"Ruth Seymour,
225-4844"-standing alone as if it were a special appropriation item.'" Id. n.2.
36. See Easterbrook, supra note 31, at 548-49.
37. Id. at 549.
FORMALISM, REALISM, AND INTERPRETATION
ganization that placed a tank (in working order) there as a war me-
morial, be guilty, under Easterbrook's approach, of a crime? But
probably he would regard this as a case where the statute was not
really clear, so that the prosecution would fail. His basic position,
as I understand it, is that if the command of the legislature is un-
clear, the court should ignore it by resolving the case against the
party relying on the statute; and a superficially clear text may be-
come unclear when context is considered. In any event his basic
position does not, for me, solve the problem of unclear (and un-
clariflable) "orders" within an organization, as I conceive the triple-
branched government of the United States to be, having a common
purpose. The task of interpretation is made neither irrelevant nor
impossible by a failure of clear communication. The recipient must
determine what his superiors would have wanted him to do to ad-
vance the common enterprise under conditions of broken
communication.
38. 398 U.S. 377 (1970). Justice Blackmun did not participate in the decision.
39. 46 U.S.C. §§ 761-768 (1982).
40. 28 U.S.C. § 1333 (1982) (original and exclusive district court jurisdiction in admi-
ralty or maritime, "saving to suitors ... all other remedies to which they are otherwise
entitled").
41. 46 U.S.C. § 688 (1982).
42. In this respect it resembled its common law cousin, tort law (I am using "common
law" in its technical sense here, not in the broad sense of Parts I and II of this Article), which
likewise had never recognized liability for wrongful death. Such liability is the product of
statutes stretching back to Lord Campbell's Act. Fatal Accidents Act, 1846, 9 & 10 Vict. ch.
93.
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
Court, noting the law's trend toward liability for wrongful death in
maritime law-a trend illustrated by the Death on the High Seas
Act itself-held that the judge-made admiralty law would, from
this case forward, impose such liability.
The analysis and conclusion are flawed in several respects.
First, the Court treats wrongful-death statutes in general and mari-
time wrongful-death statutes in particular (the Jones Act and the
Death on the High Seas Act) as if they reflected obviously sound
public policy and hence provided solid premises for deducing new
judge-made admiralty doctrine. But this view bespeaks a limited
acquaintance with legal developments in the field of industrial (i.e.,
workplace) accident liability. The overall trend has been from tort
law to workers' compensation law-the Jones Act (and by exten-
sion the Death on the High Seas Act) being regarded in many
quarters as an anachronism. Furthermore, even if liability for
wrongful death caused by industrial accidents is a good idea, the
specific form of that liability incorporated in the Federal Employ-
ers' Liability Act,4 3 on which the Jones Act and the Death on the
High Seas Act are closely modeled, can be criticized for eliminating
such defenses as assumption of risk and waiver of liability, and for
diluting the requirement of proving negligence. The Court did not
discuss these issues. Another wrinkle is that unseaworthiness is not
negligence, but rather is akin to strict liability,' so that the Court
was actually going beyond the Federal Employers' Liability Act
and the Jones Act in making new admiralty doctrine. In doing so it
conferred a windfall on Moragne's estate, since the widow's suit for
wrongful death under Florida negligence law had failed for lack of
proof that the defendant had been negligent.
Second, the Court's implicit assumption that it makes a differ-
ence whether longshoremen are entitled to sue for wrongful death is
contestable. The Coase theorem (not mentioned by the Court, and
not in the forefront of judicial awareness back in 1970-or today,
for that matter) suggests that in the absence of such an entitlement,
45. See Coase, The Problem of Social Cost, 3 J. L. & ECON. 1 (1960). On wage premia
for dangerous jobs see references in R. POSNER, supra note 7, at 183 n.5. It is unimportant
that Moragne was not the defendant's employee. He was an indirect employee in an eco-
nomic sense. For the more dangerous his work was, the higher would be the wage that his
employer (the stevedore company) would have to pay him; and the employer would demand
compensation from the shipowner, who would therefore in effect be paying Moragne his wage
premium for dangerous work.
46. Except that the details of the admiralty wrongful-death doctrine that the Court cre-
ated in Moragne, as subsequently elaborated, are not identical to those of the statute. See
e.g., Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978).
47. 119 U.S. 199, 213 (1886).
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
51. Every common carrier by railroad.., shall be liable in damages to any person
suffering injury while he is employed by such carrier ... for such injury ... result-
ing in whole or in part from the negligence of any of the officers, agents, or employ-
ees of such carrier, or by reason of any defect or insufficiency, due to its negligence,
in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves,
or other equipment.
45 U.S.C. § 51 (1982).
52. See Jamison v. Encarnacion, 281 U.S. 635, 641 (1930).
1986] FORMALISM, REALISM, AND INTERPRETATION
53. For others, see Harris, The Politicsof Statutory Construction, 1985 B.Y.U. L. REv.
745, 770-73, 785-86.
54. Pub. L. No. 95-598, 92 Stat. 2549 (1978) (codified in scattered sections of 11 U.S.C.).
55. Bankruptcy Act of 1898 § 24(a), 11 U.S.C. § 47(a) (1976) (omitted in 1978 revision).
56. See ln re Chicago, Milwaukee, St. Paul & Pac. R.R., 756 F.2d 508, 511-13 (7th Cir.
1985), and cases cited therein; 9 J. MOORE, B. WARD & J. LUCAS, MOORE'S FEDERAL PRAC-
TICE 110.15 (2d ed. 1986).
57. See 28 U.S.C. § 158(d) (Supp. 11 1984).
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
63. For contrasting interpretations of the legislative history of the Sherman Act see
Bork, Legislative Intent and the Policy of the Sherman Act, 9 J. L. & ECON. 7 (1966); L.
Kaplow, Antitrust, Law & Economics, and the Courts 50-59 (Harv. L. School, unpublished;
forthcoming, LAW & CONTEMP. PROBS.); Lande, Wealth Transfers as the Original and Pri-
mary Concern of Antitrust: The Efficiency InterpretationChallenged, 34 HASTINGS L.J. 65
(1982); W. LETWIN, LAW AND ECONOMIC POLICY IN AMERICA: THE EVOLUTION OF THE
SHERMAN ANTITRUST ACT 53-99 (1965).
64. See, e.g., Mitchel v. Reynolds, 1 P. Wms.181, 197, 24 Eng. Rep. 347, 352 (K.B.
1711):
In all restraints of trade, where nothing more appears, the law presumes them bad;
but if the circumstances are set forth, that presumption is excluded, and the Court is
to judge of those circumstances, and determine accordingly; and if upon them it
appears to be a just and honest contract, it ought to be maintained.
65. As Justice Stevens has explained with a candor uncharacteristic of judges, "One
problem presented by the language of § 1of the Sherman Act is that it cannot mean what it
says. The statute says that 'every' contract that restrains trade is unlawful. But ...restraint
is the very essence of every contract; read literally, § I would outlaw the entire body of pri-
vate contract law. Yet it is that body of law that ... enables competitive markets ... to
function effectively." National Soc'y of Professional Engineers v. United States, 435 U.S.
679, 687-88 (1978) (footnotes omitted).
19861 FORMALISM, REALISM, AND INTERPRETATION
66. Clayton Act, ch. 323, § 7, 38 Stat. 730, 731-32 (1914) (current version at 15 U.S.C.
§ 18 (1982)).
67. 18 U.S.C. §§ 1341, 1343 (1982).
68. 15 U.S.C. § 1 (1976) (emphasis added).
CASE WESTERN RESERVE LAW REVIEW [Vol. 37:179
I have said that "legal formalism" and "legal realism" are not
useful terms in which to discuss interpretation; interpretation is dif-
ferent from either logical deduction or policy analysis. Nevertheless
it should be apparent from my discussion of cases that policy con-
siderations affect the interpretation of unclear statutory and consti-
tutional provisions. Notions of policy are part of the cultural
setting in which interpretation takes place. The uncertainty that
would be injected into the electoral process is one reason why a
"literal" reading of the age thirty-five provision in Article II is the
correct reading, or, stated otherwise, one reason why the provision
means what it says. It is a policy reason.
69. A firm's profit-maximizing price is determined by the elasticity of demand facing the
firm and by the firm's marginal cost. The lower the elasticity of demand, the higher the
profit-maximizing price, the lower the marginal cost, the lower the profit-maximizing price.
The formation of a monopoly or cartel will reduce the elasticity of demand facing the monop-
olist (or the cartel members) and thereby push up price. However, if marginal cost also falls,
the monopoly or cartel price may turn out to be lower than the competitive price, and con-
sumer- will be better off than under competition.
FORMALISM, REALISM, AND INTERPRETATION
(5) reducing the social and political autonomy of the South ("com-
pleting the work of the Civil War"), (6) finding a new institutional
role for the Supreme Court to replace the discredited one of protect-
ing economic liberty (a transformation begun in the second flag-
salute case7"), and (7) breathing new life into the equal protection
clause. Some of the items on this list, such as "finding a new insti-
tutional role for the Supreme Court," I would rule out of bounds on
the ground that they cannot be referred back to the enterprise set on
foot by the enactment of the fourteenth amendment. Most of the
items, though, seem relevant to the interpretation of an unclear text.
Among efforts to ground the decision in logic, I find Robert
Bork's particularly interesting. His premise is that "Where consti-
tutional materials do not clearly specify the value to be preferred,
there is no principled way to prefer any claimed human value to any
.other. The judge must stick close to the text and the history, and
their fair implications, and not construct new rights."7 5 Applying
this premise to the issue of public school segregation, he says that
all that we as readers can get out of the equal protection clause and
its history is that the clause "was intended to enforce a core idea of
black equality against governmental discrimination."7 6 A court,
Bork continues, must avoid intruding its own values and "choose a
general principle of equality that applies to all cases. For the same
reason, the Court cannot decide that physical equality is important
but psychological equality is not. Thus, the no-state-enforced-dis-
crimination rule of Brown must overturn and replace the separate-
but-equal doctrine of Plessy v. Ferguson."7 7
Bork uses a conception of the institutional limitations of courts
(they mustn't intrude their own values) to precipitate a concept out
of the equal protection clause, a concept from which the result in
Brown can be deduced. But the logical form is deceptive. Bork as-
sumes, rather than demonstrates, that the only way the Supreme
Court could accommodate its institutional limitations to the "core
idea of black equality" was to define the core as including psycho-
logical as well as physical equality. The Court could have said,
however: "We do not know how large the core was supposed to be,
so we will enforce only physical equality, which is easier to police
and avoids our getting mired in psychological conjectures." This
74. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
75. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 8
(1971).
76. Id. at 14.
77. Id. at 14-15.
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