Formalism versus Realism

Today's DJ's Moskovitz on Appeals column is From legal formalist to legal realist, in which Myron explains his transition from a formalist into a realist. He now "looks for a theme of justice, based on the facts of the case and policy considerations." Here are some snippets from the article:

Judge Posner sums up "legal formalism" this way: "The character of legal formalism can be captured in such slogans as 'the law made me do it' or 'the law is its own thing'. The law as seen from the formalist perspective is a compendium of texts, like the Bible, and the task of the judge or other legal analyst is to discern and apply the internal logic of the compendium. He is an interpreter, indifferent or nearly so to the consequences of his interpretations in the real world. He is not responsible for those consequences; if they are untoward, the responsibility for altering them through a change in law falls to the 'political branches.'"

 "Legal realism" is "harder to describe," but he gives it a try anyway: "The realist places emphasis on the consequences of judicial rulings."

 At bottom, a judge is a judge. When a judge believes that a certain result is the fair one, he or she will often find a way to reach it. Of course, a lot goes into what is "fair." It involves more than a fair outcome for a particular party. Respect for trial judges and the Legislature come into play too. But when a balance of all those interests adds up to some particular desired result, an appellate judge might bend the words of a statute a bit or reinterpret some dicta to justify that result. As Posner might say, pragmatism usually trumps formalism.