Thursday, June 23, 2005

Did Legal Formalism Mortally Wound the Independent Jury?

Many years ago, Prof. Randy E. Barnett suggested to me that in my book on jury nullification I missed one of the reasons late nineteenth century juries lost the legally recognized role of deciding both facts and law. The reasons I had given were the diversification of the jury (which had come to include blacks, women, poor whites, and new immigrants), and the fact that elites could control legislatures but not juries. Barnett saw another factor at play: the rise of legal formalism during that same period, supplanting the natural rights doctrine that gave rise to the jury's larger role.

Under natural rights doctrine, certain rights exist independently of written laws. Whether a product of nature or God, these rights must be recognized for any laws to be legitimate. Governments can violate these rights, but cannot create or remove them. According to Barnett, the Ninth Amendment recognizes these "other" rights, which are too numerous and diverse to be enumerated. The job of legislatures, judges and juries is to perfect their understanding of those rights which already exist: they in doing so they are to help perfect an understanding of justice.

Legal formalism is an alternative doctrine that arose in the late nineteenth century. Formalists believe that justice is a product of properly and evenly applying written law. Law, according to the formalists, must be explicit and enforceable. It is the job of the legislature to adapt the law to new situations. Legal formalism respects tradition, authority, habit and training. It casts the judge less as a philosopher of law than as an interpreter and guardian of law.

One of the primary threats to legal formalism is the independent jury. Juries are more interested in justice than in law. To legal formalists, injustice under law is preferable to a justice which is the product of discretion. As Duncan Kennedy puts it, legal formalism "involves the morally delicate refusal to respond to the call for justice in the particular case, for reasons that may be bad or good according to the circumstances."

Legal formalists require that trained judges, with respect for the institutional hierarchy, strictly interpret the law. The lay public is qualified to find the facts, but no more. Juries should precisely apply the law, as given them by the judge, regardless of consequences. The appellate courts then decide whether the judge interpreted the law correctly, and in doing so will provide a precise formulation of the law to be used in future cases.

Of course, many other philosophies of law exist, yet most have as their base a belief in legal formalism. Critical Legal Studies, feminist jurisprudence, law and economics, utilitarianism, legal pragmatists and postmodernisms, and critical race theorists all, to a greater or lesser degree, depend on legal formalism. Legal formalism is no longer (for the most part) considered a theory in America's law schools; it is simply The Way We Do Law. It is the framework upon which all other theories are built.

None of us would be so brash as to suggest that justice is a meaningless word; we all desire our laws to be just and fair. Contrariwise, none of us would be so brash as to suggest there is no need for formal laws: nature will not tell us which side of the street to drive on. What legal formalists cannot concede is that there are some constitutional statutes which are unjust, or that just statutes can be misapplied in a draconian and unjust fashion. As U.S. District Court Judge Thomas A. Wiseman once noted, "Congress is not yet an infallible body incapable of making tyrannical laws." Until that omniscience is gained, there will continue to be a rather large chink in the armor of legal formalism.

A broad role for the jury in determining the merits of the law is incompatible with a legal formalist conception of law. As legal formalism rose into the predominant theory of law, jury independence was formally squeezed out of the system. It has continued to exist in a sort of legal twilight: recognized and protected in the formal law, yet considered "jury misconduct" and hidden from jurors at trial. Whether this is a rational or even formally appropriate manner of dealing with the prerogative of jurors to nullify the application of laws they find unconscionable is a question to be addressed at a later date.


At 4:16 PM, Anonymous Jerry Monaco @ Shandean Postscripts said...

Professor Barnett may be correct but, if he is correct, it might be for the reasons you originally stated in your book.

Your emphasis on the need for control by elites I think also applies to the rise of 'legal formalism' and is probably the strongest spine of the story for both the attack on jury nullification and a suite of other changes in the legal system. I say this because one side of the story of 'legal formalism' was an attempt to impose standards on a diverse national legal system that was varied to the point the of nonsense. I remember that I derived this point from Grant Gilmore's lectures collected in "The Ages of American Law" and also from my own studies on the rise of corporate law. The diversity (if not chaos) of late 19th century law from jurisdiction to jurisdiction, the unpredictable quality of judicial decisions, and the tendency of juries to rely on local customs, looked like 'insanity on the march' to many of the legal scholars, commentators, and elite lawyers. Legal formalism was just one of many tools to tame this diversity in a country that was supposed to be 'one nation', yet did not have 'one' law. The rank-and-file lawyers and judges were not legally trained. They did not interpret 'rules.' Those who wished to introduce some formalism into the process would teach them how to apply the rule of law. Or at least so the new national legal elite believed.

There was some truth in what they thought but, I think, the drive to bring standardization to the law in the various States, which was a part of some of the aspects of 'legal formalism' was mostly driven by the needs of business. In other words the same forces that were behind the post-civil war drive against jury nullification were the forces that were behind a suite of changes in the legal system, the rise of corporate law, the standardization of judges and lawyers, the rise of the law school, etc.

(Of course I am simplifying, to the point of being instrumental, and there were also other historical tendencies at work. Robert Cover, for example, pointed out that the reaction of anti-slavery judges to having to enforce the fugitive slave law was a retreat into formalistic interpretations of the letter of law.)

There are many ironies in this history. I think D.K. has pointed out in "Critique" that almost no one has ever admitted to subscribing to a 'legal formalism'. In fact, legal formalism as a doctrine may have been invented by its enemies, the legal realists. Yet as far as I know the legal realists, these classic anti-formalists, never much thought about jury nullification except to oppose it as an invitation to irrational prejudice. Also their major legal work in the restatements, court rules, the UCC, etc. were brilliantly flexible rationalizations, but were also steps toward the same national standardization that was one of the motivating forces behind formalism.

Excuse my two cents on these issues. I have been browsing your weblog as I once browsed your book in the library. I find your writing refreshing so I thought I would leave a note. At least you know that some of us are reading you.

I will come back some other time.

Jerry Monaco

At 6:55 PM, Blogger Clay S. Conrad said...

I appreciate your comments and I think you may be on to something: there exists a connection between these two parallel events. What may have started out as a desire for some basic standardization took on a life of its own, evolving into a quest for technocratic regimentation. Hence, we are evolving into an administrative law country.

I have a quote from Grant Gilmore on my desk, BTW. The quote is "in hell, there will be nothing but law, and due process will be meticulously enforced."

At 8:13 AM, Blogger Clay S. Conrad said...

Jerry Monaco's own post on this subject is a marvelous bit of writing and deserves close examination:


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