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After the Realist Revolution Published online by Cambridge University Press: 02 May 2025
After reviewing the prior analysis in the book concerning the nature and the consequences of the paradigm shift in the conventional understanding of appellate court lawmaking, this chapter focuses on the unsystematic amalgam of formalist and instrumentalist elements that currently characterizes practice before appellate courts, and that also characterizes a large number of modern appellate court opinions. What harm is there in the lack of a more disciplined and methodical approach to instrumentalist analysis by appellant litigators and appellate courts?
The chapter also focuses on the seeming denial that has been exhibited by the legal community with regard to the shift from formalism to instrumentalism and the continuing delay in any meaningful attempt to alter traditional approaches to appellate judge selection and customs of appellate practice so that they might function more coherently and more effectively in an instrumentalist era. What can be reasonably expected in the short, medium, and long term with respect to the prospect of such changes?
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