 American "Legal Formalism" and Elite Standardization of the Law
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Jun. 23rd, 2005 @ 09:46 pm 
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Clay Conrad at jurygeek has an interesting post entitled "Did Legal Formalism Mortally Wound the Independent Jury?."
I will quote the first paragraph:
Many years ago, Prof. Randy E. Barnett suggested to me that in my book on jury nullification I missed one of the reasons late nineteenth century juries lost the legally recognized role of deciding both facts and law. The reasons I had given were the diversification of the jury (which had come to include blacks, women, poor whites, and new immigrants), and the fact that elites could control legislatures but not juries. Barnett saw another factor at play: the rise of legal formalism during that same period, supplanting the natural rights doctrine that gave rise to the jury's larger role.
The link Mr. Conrad provides to legal formalism is to a good article by Duncan Kennedy in the "Encyclopedia of the Social and Behavioral Sciences".
Once while browsing the library I picked up Mr. Conrad's book Jury Nullification: The Evolution of a Doctrine and I liked what I read. I am sure that my political world view does not match Mr. Conrad's but I found his book well written and thoughtful. I recommend it along with We, the Jury: The Jury System and the Ideal of Democracy by Jeffrey Abramson. My particular point of view on the jury system is that it is a core and elemental component of democracy and that any restriction on the jury is, in fact, an attack upon an important democratic form.
I have not read Mr. Conrad's book in full but only about 70 pages while avoiding work in the library, so I do not have the book in front of me and I don't remember if any of my ideas were actually lifted from Mr. Conrad. I am in the strange position of defending Mr. Conrad. I am sure he does not need my defense by I do hope that he appreciates it.
Professor Barnett may be correct in his suggestion that doctrines of 'legal formalism' contributed to the decline of jury independence and may have helped to create the modern notion of the law/fact dichotomy. As every first year student knows decisions on the 'law' are no longer the domain of jury deliberation. The jury's jurisdiction is just the facts. I think the thesis can be maintained that the legal and social complex of forces behind attacks on jury independence were the same that led to the rise of legal formalism. In fact legal formalism was mainly an attack on the independence of judges, especially small town judges. If this is true then Conrad's emphasis on the need for control by elites also applies to the rise of 'legal formalism.' Elite control of the legal system is probably the strongest spine of the story that led to attacks on jury nullification, but also contributed to a suite of other changes in the legal system.
I can not provide all of the historical evidence here and now but let me state that independent, erratic, and quirky judges, and quirky local legal systems were as much of a "problem" in the period after the civil war as independent juries. Further, I would like to point out that bringing the 'rule of law' to the Western Territories, and campaigns against what was sometimes called 'local justice,' and at other times called lynch law were part of the propaganda campaign that was behind the movement to bring some kind of standardization to the national legal system. Formalistic notions of applications of the rule of law were part of this campaign. The part of the story that we call the rise of 'legal formalism' was mainly an attempt to impose standards on a diverse national legal system that was varied to the point the of nonsense. But for who was the lack of standardization a problem? For the newly emerging national elite of lawyers and for the people that they served in the new national market. The need to assert some control over a diverse legal system was a daily problem for the corporate lawyer who wished to provide adequate representation to his client. I derive some of these points from Grant Gilmore's lectures collected in "The Ages of American Law" and also from my own studies on the rise of corporate law. The diversity (if not chaos) of late 19th century law from jurisdiction to jurisdiction, the unpredictable quality of judicial decisions, and the tendency of juries to rely on local customs, looked like 'insanity on the march' to many of the legal scholars, commentators, and elite lawyers. Legal formalism was just one of many tools to tame this diversity. The list of woes was as follows: We were a collection of jurisdictions that was supposed to be 'one nation', yet did not have 'one' law. The rank-and-file lawyers and judges were not legally trained. They did not interpret 'rules', but derived their own standards of right and wrong loosely based on the law. A solution it was thought was was to introduce definite constraints on the practice and interpretation of the law. If some formalism was introduced into the process then perhaps the educated elite could teach the small town judge and lawyer how to apply the rule of law. This would also allow for the professionalization of law and would tame some aspects of small town hucksterism. Or at least so the new national legal elite believed.
There was some truth in what they thought, but I believe the drive to bring standardization to the law in the various States was necessitated by the needs of business and the lawyers that represented them. In other words the same forces that were behind the post-civil war drive against jury nullification were the forces that were behind a suite of changes in the legal system that occurred in the same period - the rise of corporate law, the birth of the modern law-firm, the drive for standardization of judges and lawyers, the rise of the law school as a feeder system to government and law practice, etc, the "new" business oriented interpretations of the Fourteenth Amendment, the introduction of professional codes of ethics, and especially the rise of national business firms and a national labor market.
Of course I am simplifying, to the point of being instrumental. There were other historical tendencies at work in the decline of 'natural law' theories and the rise of 'legal formalism'. Robert Cover, for example, pointed out that the reaction of anti-slavery judges to having to enforce the fugitive slave law was a retreat into formalistic interpretations of the letter of the law. On the other side legal formalism in the post-Civil War era was itself opposed by some of the most determined advocates of 'corporatism' and national standardization, i.e. by legal theorists and their lawyer-students who had a Hegelian notion of what the law should become. There are many ironies in this history and the portion of it that leads to the crucial nexus between law firms, law schools and the administrative state has yet to be told. But just one example is the fate of the legal realism movement. I think it was Duncan Kennedy who pointed out in his A Critique of Adjudication that almost no one has ever admitted to subscribing to 'legal formalism'. In fact, legal formalism as a doctrine may have been invented by its enemies, the legal realists. Yet 'legal realism' with its later alliance with the New Deal and its participation in the codification of model codes became inextricably allied with the Administrative State. Perhaps in this way they thought they could tame the legal domination of the Corporate Lawyers from the previous generation. But ironically it was probably the administrative state that has done more than anything else to take the law out of the hand of juries and moved rules and customs further away from democratic deliberation. As far as I know the legal realists, these classic anti-formalists, never much thought about jury nullification except to oppose it as an invitation to irrational prejudice. Their major legal work in the restatements, court rules, the UCC, etc. were brilliantly flexible rationalizations, but were also steps toward the same national standardization that was one of the motivating forces behind formalism.
Jerry Monaco
New York City
23 June 2005
This post is included in Blawg Review #36 @ AutoMuse.
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