Friday, May 16, 2008

Tamanaha on Grossman & Tamanaha

Brian Tamanaha weighs in on Lewis Grossman's comparison of their recent works (see posts that follow if you're just tuning in...):
There are indeed interesting points of overlap and difference between my "Bogus" article and Professor Grossman's article.

Although I will not directly address any of his points, I will add two additional comments. Another important difference between us is that, while he argues that Carter was a pre-realist thinker, Professor Grossman appears to to accept the standard "classical legal thinker" account of Langdell, which I reject as also a distortion. It is on this basis (and more) that I make sweeping claims about the "bogus" tale about formalism.

The second comment is that there is perhaps a closer overlap between our arguments in my companion article, "Understanding Legal Realism." In this second piece I identify the striking parallels between the historical jurists and the legal realists. Grossman focuses mainly on Carter, whereas I discuss other historical jurists as well. The main difference is that while he continues to privilege the legal realists (portraying Carter as a pre-realist), I infer from these strong parallels that "realism about judging" long predated the realists.

The different inferences we are willing to draw from this evidence might be a reflection of the fact that we work in different disciplines. Professor Grossman is a historian. I explore this historical material for its broader theoretical implications. This difference in perspective aside, I think the underlying historical material we are exposing has much in common.

What it all means is another matter.

From this point, I welcome both writers and others interested to continue this helpful discussion in the comments. [Please note: you no longer need a (free) Google account to comment -- you can also register with Open ID. And then you're able to post using a pseudonym, if that's what you prefer.]