Document Type

Article

Publication Date

Summer 1996

Abstract

Legal activity invariably takes place within some structure, however lax. No matter how often the impossibility of such structure is announced by academics, murmurs of disbelief are heard in the trenches below. Legal formalism is the effort to make sense of the lawyer's perception of an intelligible order. This is why in the last two centuries formalism has been killed again and again, but has always refused to stay dead. Weinrib claims to find the structure that explains Formalism's refusal to stay dead in natural law. This Article argues for an entirely different explanation. Law exists in the minds of lawyers in a form separate and critically different from its form on the books. The law in lawyers' heads is largely formalistic and the process by which it is applied is largely deductive. The Formalists are correctly reporting on their own experience. The Realists, who consider only the written law, are at least largely correct in their conclusion that it is overwhelmingly indeterminate. The problem is that neither the Formalists nor the Realists have yet recognized the existence and importance of the separate realm of law in lawyers' heads and its power to drive legal outcomes. Part I of this Article begins by presenting evidence of persistent, systematic differences in legal outcomes between communities governed by the same written law. It then explains how mental models shared within legal communities could produce those differences. Part II argues that the determinate nature of shared mental models renders them vulnerable to manipulation through legal strategy. It explores that vulnerability and the models' defenses to it. Part III then presents two partial theories about how law evolves. The first holds that lawyers are socially constrained in the number of challenges they can make to the shared mental model; how they exercise their limited challenges determines the direction of change. The second holds change to emanate from a dialectic in which legal strategy first achieves results thought unattainable. That leads to a new set of expectations and, finally, to the collapse of the old rules into a new set of rules that explain the new expectations directly. Part IV first explores the explanatory implications of the law in lawyers' heads. Law is psychological phenomena; systematic differences in legal outcomes from community to community are not only possible but inevitable; and any attempt to alter the situation will render legal communities less efficient. Part IV then turns to the normative implications. It argues that strategic analysis has important advantages over economic analysis as a means of understanding law; that the legal system should strive for a level of simplicity at which it is understandable by the governed; and that lawyers and judges should attempt to write the unwritten law that governs their various communities. Part V summarizes the argument and conclusions.

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