5 - Problematic Aspects of Instrumentalist Court Lawmaking within a Formalist Framework

Summary

Using the Tarasoff case as an exemplar, this chapter identifies and discusses a number of specific ways in which modern instrumentalist legal analysis is burdened and compromised when conducted within the structure, and according to the procedures, of current appellate adjudication. This is the case because this structure and these procedures are, in large part, vestiges of the earlier formalist period, unchanged for well more than a century.

The selection of appellate judges on an assertedly merit basis, and not by popular election, is a means of appointing judges far more in harmony with a formalist jurisprudential paradigm than with an instrumentalist one. The exceptionally limited number and kind of inputs that are involved in appellate adjudication are far more in line with formalism than instrumentalism. The kind of empirical information that is routinely excluded from the record of a case at trial, and thus denied to appellate courts, by various rules of evidence and privilege is often information that would be useful and valuable to the appellate courts when engaging in instrumentalist common law analysis. These are procedural rules that made sense within a formalist framework that operated far more problematically in the modern instrumentalist era.