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After the Realist Revolution Published online by Cambridge University Press: 02 May 2025
This chapter analyses the consequences of the paradigm shift from formalism to instrumentalism on the activity of legal scholarship. Under a traditional formalist conception, the activity of appellate courts in making and developing common law and the activity of legal scholars studying and writing about that lawmaking activity are in close harmony. The unifying feature of both endeavors is a mastery and an application of traditional formalist legal analysis. Both courts and legal scholars are focused on the process of deductively applying identified first principles to novel legal issues as a way of determining logically required resolutions of those issues. They are also both involved in the process of refining an established body of common law to accommodate new factual disputes as they arise and to incorporate the preferred resolution of novel issues.
The shift from formalism to instrumentalism profoundly disrupted this harmonious synergy. Much in the same way that the intellectual work of appellate courts changes fundamentally under instrumentalism, so too does the professional posture and responsibilities of legal scholars.
This chapter offers a comprehensive account of modern legal scholarship in the current instrumentalist era.
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