The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law

This Symposium commemorates the publication of Karl Llewellyn's assault on the canons of statutory interpretation. This Article seeks to situate Llewellyn's view of statutory interpretation within the ongoing debate between advocates of practical reason and formalism. Many critics of practical reason question its compatibility with the rule of law. If we cannot precisely describe the operation of practical reason, can we have any confidence in its ability to guide judicial decisions?

Or, on the contrary, does formalism provide a greater degree of democratic accountability, certainty, stability, and predictability than practical reason? These questions are the primary concern of this Article. Part I lays the groundwork by describing Llewellyn's views and their relationship to current writing on practical reason. It then sketches the formalist counterattack against practical reason.

Formalists argue that a jurisprudence of rules-to be interpreted primarily according to their "plain meaning"-provides legal certainty, predict- ability, and objectivity.' Part II critiques formalist interpretation, arguing that formalism cannot deliver on its promise to provide greater implementation of these important "rule of law" virtues. Formalist methods of statutory interpretation neither eliminate the need for practical reason nor ease communication between legislatures and citizens. Thus, formalist methods cannot achieve the formalists' own normative goals. Part II then turns to the criticism that practical reason is incoherent, subjective, and unpredictable-an "appeal to an unverifiable and even unknowable faculty." Cognitive psychologists have shown, however, that experts rely on a variety of cognitive skills (such as Llewellyn's "situation sense") to solve problems rather than simply executing a battery of formal rules.

We have confidence in the operation of these cognitive skills in other contexts, and they are presumably also reliable enough to provide legal predictability and stability.