| In the 1920s and 1930s the Legal Realists complained that judges' case decisions were nothing but a bunch of "magic words." The Realists' critique of doctrinal formulas and court formality has been extremely influential. But the implications of the legal magic they observed have never been fully explored. The Realists were right that law works like magic, but they were wrong about how magic works. The Realists viewed magic as definitionally false and irrational. No wonder, then, that they assumed the magical elements of adjudication they identified were necessarily phony or foolish. This is essentially the Victorian anthropological paradigm of magic as a kind of false science. But modern field anthropologists revised that view. They saw magic not as false objective science but as social action with genuine transformational effects. My dissertation applies the insights of twentieth-century field anthropology to theorize legal magic as an authentic mode of legal practice. Through this alternative lens, one can see that law's heightened emphasis on metaphoric and performative language, rigid formality, and ancestral (precedential) speech may crucially influence adjudicative practice. After considering the different aspects of legal magic and the Realists' critique, I propose three potential social roles for legal magic: as a way to imbue official articulations of legal norms and decisions with the affective moral force of lived experience, as an institutional practice that may enhance judicial impartiality, and as a method for symbolically reversing injuries. The dissertation concludes with a short critique of appellate courts' no-citation rules, using the analyses of legal magic developed throughout the piece. |
