1 - Introduction

Summary

This chapter offers a brief overview of the basic thesis of the book – that we are currently in a period of widely understood instrumentalism with respect to the creation of common law by appellate courts in the United States. This modern era follows, almost by default, a long and traditional period of formalism, during which it was presumed that the nature of common law creation by appellate courts was fundamentally logical, objective, and mechanistic in nature. Belief in this understanding of appellate court lawmaking was discredited by the legal realist movement, which began in the first third of the twentieth century, and left a void that was filled by instrumentalism.

The current era of common law lawmaking is characterized by a conceptually incoherent and frequently inconsistent amalgam of formalist and instrumentalist elements. This has resulted in practice by, and before, appellate courts in the United States that is often opaque and confusing.