FORMALISM AND REALISM IN RUINS (MAPPING THE LOGICS OF COLLAPSE)

Abstract

After laying out a conventional account of the formalism vs. realism debates, this
Article argues that formalism and realism are at once impossible and entrenched. To say they
are impossible is to say that they are not as represented—that they cannot deliver their
promised goods. To say that they are entrenched is to say that these forms of thought are
sedimented as thought and practice throughout law’s empire. We live thus amidst the ruins of
formalism and realism. The disputes between these two great determinations of American law
continue today, but usually in more localized or circumscribed forms. We see versions of the
disputes, for instance, in the stylized disagreements over the desired form of judicial doctrines
(rules vs. standards); or the best rendition of key political values like equality (formal vs.
substantive); or the proper mode of judicial interpretation (textual vs. purposive). Here too, the
arguments that comprise the localized variants of the dispute remain inconclusive. The Article
concludes by mapping “the logics of collapse”—specifically, some critical moves that
undermine the rhetorical and intellectual force of the formalism vs. realism disputes and their
localized variants. The aims here are several. First, the ability to deploy the critical moves helps
with analysis. The critical moves help show how the arguments are constructed in the first place
and how they are rhetorically and intellectually compromised. Second, and relatedly, the
critical moves allow us to avoid being taken in by the formalism vs. realism arguments and their
localized variants. Third, the aim is to show how our formalist and realist argumentation has
already been surpassed by a legal “logic” that undermines the cogency of that argumentation.