Efficient Causes: The four Decisionmaking Styles

Author:Charles D. Kelso; R. Randall Kelso
Profession:Professors of Law
Pages:35-62
SUMMARY

§ 3.1 Formalism: The Analytic/Positivist Approach. § 3.2 Holmesian: A Functional/Positivist Approach. § 3.3 Instrumentalism: A Functional/Normative Approach. § 3.4 Natural Law: The Analytic/Normative Approach.

 
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Page 35

As indicated in Chapter 2, variations exist in the relative weight that different jurists give to the two critical factors significant for judicial decisionmaking: the judge's views on the nature of law, discussed at ß 2.2, and on the nature of judicial task, discussed at ß 2.3. As discussed at ß 2.4, combining the two different views on the nature of law (analytic versus functional) and the nature of the judicial task (positivist versus normative) results in four judicial decisionmaking styles: formalism (analytic positivism); Holmesian (functional positivism); instrumentalism (functional normative); and natural law (analytic normative). Each of these interpretation styles is discussed in greater depth in this Chapter. A short-hand reference for the major differences among these four interpretation styles, suggested by the discussion at ß 2.4, is the following: formalist judges emphasize the logical elaboration of existing legal categories; Holmesian judges add to this focus a functional emphasis on the purpose of the existing legal categories; natural law judges add to this positivist focus on the logic and purpose of existing legal categories a normative emphasis on the analytic balancing of background moral principles embedded in the law; instrumentalist judges add to this normative enterprise an emphasis on functional consideration of background social policies embedded in the law, which become particularly relevant when existing legal categories yield indeterminate or ambiguous results, and thus leeways exist in the law. Table 3.4 summarizing these differences appears at the end of this Chapter, at ß 3.4 text following n.106.

ß 3 1 Formalism: The Analytic/Positivist Approach

As discussed at ß 2.4, one approach to judicial decisionmaking is represented by analytic, positivist judges who combine a focus on certain, predictable treatment of existing positive law with an insistence on logical rule application. Such judges have generally been called "formalists" because they concentrate on the formal aspects of law - technical rule manipulation in light of a statute's or constitution's words, and the literal holdings of common-law precedents. Under this approach, law is viewed as a closed system of related rules to be logically or mechanically applied. A classic account of this formalist approach appeared in 1908 by Harvard University Law School Dean Roscoe Pound, in an article entitled Mechanical Jurisprudence.1 Professor Robert Summers noted in 1981 when comparing formalism and instrumentalism, "Formalists generally viewed the law as a relatively closed system of conceptions and axioms for which judges and others could deduce resolutions of almost any issue."2 As phrased by Professor Frederick Schauer, in his 1988 article Formalism, "[N]ow that we have established that formalism - in the sense of following the literal mandate of the canonical formulation of a rule - is conceptually and psychologically possible, we must ask whether it is desirable." For a formalist judge, the answer to that question is "yes."3 Page 36

As noted by many authors, 19th-century Harvard University Law School Dean Christopher Columbus Langdell was a leading advocate of the formalist approach. Professor Thomas Grey, in his article, Langdell's Orthodoxy, has described this approach to judicial decisionmaking as follows:

In the terms of the analytic scheme just sketched, the heart of classic theory was its aspiration that the legal system be made complete through universal formality, and universally formal through conceptual order. A few basic top-level categories and principles formed a conceptually ordered system above a large number of bottom-level rules. The rules themselves were, ideally, the holdings of established precedents, which upon analysis could be seen to be derivable from the principles. When a new case arose to which no existing rule applied, it could be categorized and the correct rule for it could be inferred by use of the general concepts and principles; the rule could then be applied to the facts to dictate the unique correct decision in the case. The system was doubly formal. First, the specific rules were framed in such terms that decisions followed from them uncontroversially when they were applied to readily ascertainable facts. Thus, the classic orthodoxy sought objective tests, and avoided vague standards, or rules that required determinations of state of mind. Second, at the next level up one could derive the rules themselves analytically from the principles.4

As with each of the four judicial decisionmaking styles described in this Chapter, the formalist style can be applied in common-law, statutory interpretation, or constitutional interpretation cases. Two good descriptions of the formalist style as applied to common-law decisionmaking appear in Professor Grant Gilmore's book, The Ages of American Law, and Professor Karl Llewellyn's book The Common Law Tradition - Deciding Appeals. As described by Professors Gilmore and Llewellyn, the formalist style of decisionmaking is based upon the assumption that law is composed of a system of rationally related rules, and that the judge's sole function is to apply those rules mechanically to the case at hand. It is a system of pure logical categorization and deduction. Judges do not need to inquire into the particular consequences of applying the rule in the case before them. The judge's sole duty is to apply the rule, or rules, applicable to the case at hand. The premise of such a system is that change should come, if at all, from the legislative or executive branch. Judges should not make new rules; rather, they should merely apply existing law.5 This analytic positivist approach is also reflected in the late 18th century and early 19th century works of Jeremy Bentham and John Austin in England, as noted at ßß 2.3.1 n.27 & 7.1 text preceding n.1.

Two examples from contract law indicate general and specific aspects of a formalist approach to common-law decisionmaking, and how that approach differs from an instrumentalist approach. Formalism and instrumentalism are compared here because they are opposite approaches to judicial decisionmaking, in the sense that formalism is an analytic positivist approach, while instrumentalism is a functional normative approach. Reflecting the formalist view that logical elaboration of existing legal categories can provide a relatively concise list of legal rules and principles that can govern the outcome of most legal problems, Dean Langdell noted in 1871 about the law of contracts: Page 37

[T]he number of fundamental legal doctrines is much less than is commonly supposed. . . . If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable in their number.6

In contrast to this view, as discussed at ß 3.3, a judge following an instrumentalist approach is likely to embrace a wider array of doctrines because of the instrumentalist willingness to consider how background principles and policies embedded in the law must be balanced to achieve the optimal result in each circumstance, Llewellyn's "Grand Style" of decisionmaking. Thus, as Professor Gilmore noted about Llewellyn's approach to contract law, an approach that is reflected in part in the drafting of the Uniform Commercial Code in the 1950s, of which Llewellyn was the Reporter:

Transactions between professionals (or merchants) should be treated differently from transactions in which a professional sold goods to a non-professional (or consumer); [that s]ales for resale should be treated differently from sales for use; [that d]istinctions should be made between sales for cash and sales for credit; present sales and future sales; one-shot or single delivery transactions and long-term contract arrangements; [etc.].7

With respect to a specific example from contract law, Langdell's formalist approach led him to reject the "mailbox" rule for the enforceability of acceptances sent by mail. According to Langdell, the basic contract principle that offers, revocations of offers, and rejections of offers are only valid when received logically implied acceptances sent by mail are only valid when received.8 In contrast, as Llewellyn argued, from a functional perspective a different rule for revocations and acceptances is justifiable because a person making an offer can be expected to assume that an acceptance may be on the way, while a person making an acceptance needs the security of knowing that this acceptance will not be undercut by a later received revocation. Further, in the event the mail is lost, it is more likely that the offeror will inquire about the acceptance rather than the offeree inquiring whether the acceptance was received.9 Reflecting a similar functional approach toward law, Holmes also supported adoption of the mailbox rule. Holmes wrote about Langdell's mailbox rule argument:

A more misspent piece of marvelous ingenuity I never read, yet it is most suggestive and instructive. I have referred to Langdell several times in dealing with contracts because to my mind he represents the powers of darkness. He is all for logic and hates any reference to anything outside of it. . . .10 Page 38

An example from tort law also indicates differences between a formalist and an instrumentalist approach to common-law decisionmaking. The case of Hynes v. New York Central Railroad Co. was triggered on July 8, 1916, when James Harvey Hynes and two of his companions swam across the Harlem River from Manhattan to the Bronx in New York City. Along the Bronx side of the river ran the New York Central Railroad Co.'s right of way. The railroad operated its trains...

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