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At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning of the twenty-first century, common law is seen less as the logical working out of basic first principles into an ever fuller, more detailed and complete canon, than it is a practical social tool by which certain desirable goals are pursued. Common law from this perspective does not stand apart as some kind of distinctive body of logically derived high principle, but instead joins other governmental and social mechanisms in an ongoing effort to solve current social problems and achieve communal goals. This currently dominant paradigm of common law adjudication can be called instrumentalism.

This article uses the famous decision in Tarasoff v. Regents of the University of California to make the case that current common law jurisprudence, while often characterized by instrumentalist legal analysis, actually remains predominately formalist in its judicial procedures. I describe the many difficulties that courts face, especially appellate courts, when they engage in instrumentalist legal analysis within the procedural confines of our still predominately formalist system of common law adjudication. This dissonance between the conceptual framework within which appellate courts consider the creation of new legal doctrine, and the methods by which they engage in that analysis, is a critically important and significantly underappreciated aspect of our current common law.



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