The Positive Foundations of Formalism: False Necessity and American Legal Realism
![handle is hein.journals/hlr127 and id is 2496 raw text is: BOOK REVIEW
THE POSITIVE FOUNDATIONS
OF FORMALISM: FALSE NECESSITY
AND AMERICAN LEGAL REALISM
THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL AND EMPIR-
ICAL STUDY OF RATIONAL CHOICE. By Lee Epstein, William M.
Landes & Richard A. Posner. Cambridge, Mass.: Harvard University
Press. 2013. Pp. 422. $49.95.
Reviewed by Lawrence B. Solum*
I. INTRODUCTION
The great debate over formalism and realism has a tortuous histo-
ry. It was the jurisprudential debate of twentieth-century American
legal theory, and it continues, rehashing old moves, relabeling old posi-
tions, and - this is the hopeful bit - exhibiting new, surprising, and
productive developments. One of those productive developments has
been the turn to rigorous methods in positive legal theory. Contempo-
rary legal theory is increasingly influenced by methods and ideas im-
ported from the social sciences - a development that is part of a larg-
er trend in the legal academy: interdisciplinarity. Some of this story is
old hat by now. Law and economics' and the law and society move-
ment2 entered the legal academy long ago. Other parts of the story are
new. Today, interdisciplinary approaches to legal theory include the
transplantation of empirical methods for the study of judicial behavior
from political science,3 the application of the game-theoretic models
developed under the rubric of positive political theory (PPT) to the
strategic interactions among judges and between judges and the politi-
cal actors who select them and react to their decisions,4 and the na-
* Professor of Law, Georgetown University Law Center.
1 For a history of law and economics, see Richard A. Posner, The Law and Economics Move-
ment: From Bentham to Becker, in THE ORIGINS OF LAW AND ECONOMICS 328 (Francesco
Parisi & Charles K. Rowley eds., 2005).
2 For a history of the law and society movement, see Lawrence M. Friedman, Essay, The Law
and Society Movement, 38 STAN. L. REV. 763 (1986).
3 See Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REV. 831,
834 (2008).
4 See Tonja Jacobi, Essay, The Impact of Positive Political Theory on Old Questions of Con-
stitutional Law and the Separation of Powers, 1oo NW. U. L. REV. 259 (2006); Mathew D.
McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of
Political Control, 3 J.L. ECON. & ORG. 243, 273-74 (1987) [hereinafter McNollgast]; McNollgast,
Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW &
CONTEMP. PROBS. 3 (1994).
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The Positive Foundations of Formalism: False Necessity and American Legal Realism
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