6 - Other Aspects of Current American Law that Reflect the Paradigm Shift from Formalism to Instrumentalism

Summary

In addition to the problematic aspects of modern instrumentalist analysis when it is taking place within a still-existing traditional formalist structure and according to procedures developed during the formalist era, the paradigm shift from formalism to instrumentalism has occasioned other changes in appellate lawmaking.

It has profoundly altered the relationship of appellate courts to the larger empirical world. It has increased the range of normal variation in the kinds of arguments thought to be appropriate to make to appellate courts and increased the routine uncertainty that exists about the kind of arguments to which appellate courts will be receptive and potentially persuaded. It has resulted in less consistency in the substance of common law doctrine across different jurisdictions. It has increased the modern movement toward unpublished opinions. It has increased the partisan political polarization of judicial appointments. And it has resulted in the declining credibility and authority of judges and courts.