Homo Psychologicus: Notes on a New Legal Formalism

Having survived the assault of the Realists earlier in this century, the doctrinal tradition in legal theory and legal education is undergoing a second wave of criticism. Again, doctrinal writing and education is charged with promoting a conservative ideological perspective and with ignoring the practical tasks of lawyering. Law schools are criticized for failing both to train competent practitioners and to instill in their students an appropriate sense of responsibility. One of the most interesting aspects of this second wave of criticism has been the emergence of a new style of discourse about law inspired by psychology. This style, which I call the Psychological Vision, shifts attention away from cases and statutes and the professional discourse of lawyers and judges toward the practical tasks of lawyering and the interaction between lawyers and clients. The Psychological Vision claims to cut through the formalism of the established doctrinal approach and to confront the concrete realities of lawyering