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?

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.