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20 Legal Stud. F. 51 (1996)
Formalism and Syllogisms: A Pragmatic Critique of Writing in Law School

handle is hein.journals/lstf20 and id is 71 raw text is: FORMALISM AND SYLLOGISMS: A PRAGMATIC CRITIQUE OF WRITING IN LAW SCHOOL KATE O'NEILL I. INTRODUCTION Although American legal practice and jurisprudence are fundamentally pragmatic,1 old-fashioned formalism2 still sets the 'Assistant Professor of Law, University of Washington School of Law. I would like to thank Dean Roland Hjorth and Judge David G. Trager, former Dean of Brooklyn Law School, and the Boeing Endowment for the Humanities for their support. I am indebted to Marilyn Walter for tutelage, and Jane Ellis, Elizabeth Fajans, James Hardisty, Ann McGinley, Phil Meyer and Richard Neumann for thoughtful comments. Most of all, I owe thanks to my students and Carolyn Laredo, in particular. 1 E.g. Symposium, The Renaissance of Pragmatism in American Legal Thought, 63 S. Cal. L. Rev. 1569 (1990); Linda Greenhouse, Portrait of a Pragmatist, N.Y. Times, July 14, 1994, at Al, A10 (discussing Justice Breyer's judicial philosophy). Pragmatism can be defined as 1) a pragmatic attitude or procedure, 2) a philosophy that evaluates assertions solely by their practical consequences and bearing on human interests. OXFORD ENGLISH ENCYCLOPEDIC DICTIONARY (1991). Pragmatism has been associated with instrumentalism. See e.g. Robert S. Summers, INSTRUMENTALISM AND AMERICAN LEGAL THEORY 20-22 (1982). Judicial pragmatism is characterized by an attention to empirical data, a respect for multiple perspectives and bases for reaching and justifying decisions, and, concomitantly, an intolerance for formal or exclusive doctrines or methodologies. E.g., Richard A. Posner, THE PROBLEMS OF JURISPRUDENCE 26 (1990Xhereinafter PROBLEMS); Richard A. Posner, OVERCOMING LAW 11 (1995). For a general history of American pragmatism, see John P. Diggins, THE PROMISE OF PRAGMATISM (1994). A precise definition of legal pragmatism is elusive, in part because pragmatism eschews doctrine. See e.g. Daniel C.K. Chow, A Pragmatic Model of Law, 67 Wash. L. Rev. 755 (1992); Steven D. Smith, The Pursuit of Pragmatism, 100 Yale L.J. 409 (1990). For my purposes, the important point is how pragmatism differs from Langdellian formalism. Pragmatism differs from formalism in at least two ways relevant to this article. First, a pragmatic resolution of a legal dispute chiefly aims to achieve good future consequences through multiple, often interdisciplinary techniques (a grab bag sometime called 'practical reasoning') while a formalist resolution relies more exclusively on principled application of prior rules or precedents. See Posner, PROBLEMS supra at 79-86. Second, pragmatists are unlikely to assert that pragmatic judgments are demonstrably correct in relation to external and normative criteria, such as morality or logic. See e.g. Richard Rorty, THE CONSEQUENCES OF PRAGMATISM xiii - xiv (1982). These differences do not mean that a legal pragmatist rejects formal legal analyses. A pragmatist may find experience and wisdom in precedent. A pragmatist may value the consistent interpretation of statutes and precedent to achieve goals such as predictability, fairness and stability. The pragmatist judge, and therefore the lawyer, will evaluate the outcome of the formal analysis against external considerations, particularly in difficult, cases. See e.g. Posner, PROBLEMS, supra at 130-148. 1 American legal formalism implies a belief that immutable principles exist and that

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