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Abstract:
The article treats the contemporary revival of formalism as a self-conscious movement in legal thought, telling a story to place it in historical context, and analyzing its main features for their point and coherence. The story traces the history of formalism from its high point in late 19th-century Langdellian and Lochner-style jurisprudence, to its fall into disfavor under attack from the functionalist jurisprudence dominant during the second half of the century. Its contemporary revival is portrayed partly as a conservative ideological response, but also partly as a reaction to the failure of functionalist jurisprudence to justify judicial independence as a central feature of the rule of law. The analysis portrays the new formalists (Justice Scalia is taken as representative) as characterized by their pursuit of four jurisprudential strands: objectivism, originalism, textualism, and conceptualism. These four strands are in tension with each other, but these tensions do not give rise to contradictions if they are treated as having merely guiding or presumptive force, united by a heightened attention to the values of the rule of law. But so construed, contemporary formalism is much less formal than the rhetoric of both its proponents and its critics suggest; it more resembles the pre-Realist pragmatic functionalism of Holmes, Pound, and Cardozo than it does classic 19th-century formalism.

Abstract:
Until World War II, the United States was the only legal system to have active judicial review, and it was also the legal system within which a functionalist or pragmatist rather than a formalist approach to law generally was best established in legal education, commentary, and judicial discourse. What is the connection between these two phenomena? One possibility is that judicial review furthers a "statesmanlike" and hence a flexibly pragmatic approach to legal questions. Such a story can plausibly be told about how over the last half century legal systems around the world have gotten more pragmatic in their approach to law generally, as they have adapted to judicial review. A similar story can be told about American legal history - that John Marshall in establishing judicial review also inaugurated the Grand Style that led on to Cardozo and Llewellyn by direct inspiration. But on examination the latter story doesn't hold up. If judicial review led to pragmatic jurisprudence in this country, it was by reaction, not direct inspiration. The legal Progressives, who were skeptics about judicial review, effectively joined into a single "assault on formalism" their critiques both of Langellian private-law conceptualism, and of the aggressive classic-liberal constitutional doctrines of the Lochner era. These two tendencies were only loosely related, as we can see when we analyze the elements that lead us to describe a body of thought as formalist. But the Progressives' successful conflation of them into a single impressive bogeyman helped motivate the establishment of the functionalist orthodoxy that was articulated over the course of the twentieth century by Holmes, Thayer, Gray, Pound, Cardozo, Brandeis, Corbin, Wigmore, Llewellyn, Fuller, Traynor, Posner, and the many other pragmatist legal thinkers who have made up the mainstream of modern American legal thought.

Abstract:
Tort law today is commonly (though not universally) conceived as a functional response to the social problem of accidental personal injury. That conception downplays the intentional torts, the torts that do not involve physical injury, and the view of tort law as the elaboration of notions of corrective justice, while foregrounding the choice between tort and other legal regimes for dealing with the accident problem. The article examines the origins of the accident-centered conception at the time torts became established as one of the fundamental common-law categories in the latter half of the nineteenth century. The first commentator to sketch the basics of the accident-centered approach was the young Oliver Wendell Holmes, Jr. Holmes's view of the subject emerged from his reconsideration of an initial judgment, plausible at the time, that torts should not be a primary legal category at all. Neither Holmes's original doubts about torts as a category nor the theory with which he resolved them had much to do with his views about sound social policy toward industrial accidents. His tort theory rather arose out of the debate, remote and abstruse to us today, about what was the best taxonomic arrangement of the substantive law to adopt in the light of the abolition of the common-law forms of action. The influence of Roman and civil law theory favored adopting torts as a basic category, while the analytical jurisprudence of Bentham and Austin pressed the other way. After first taking the Bentham-Austin side against torts, Holmes found that centering tort law around the problem of accidents could justify its recognition as an important subject after all. Coincidentally, the burst of litigation over industrial personal injury in the late nineteenth century made Holmes's construction of tort law around accidents especially salient, and helped it to gain the dominance it holds today. The article first sketches the accident-centered conception of torts as currently understood. Then it shows why torts need not have emerged as a fundamental legal category in the late nineteenth century. Next it traces the steps through which Holmes moved from rejecting torts as a subject to justifying it as a body of law organized around the negligence action and the problem of accidental injury. It concludes by noting how the accident-centered conception undermines the continued survival of torts as a primary division of our substantive law, given the rise of alternative means of dealing with the accident problem.

Abstract:
Throughout his long career, Holmes seemed to be waging a campaign against something he called "logic" in legal theory, in the name of (descriptively) "experience," and (prescriptively) instrumental reason. What was legal logic to him, and what (and how much) did he have against it? The question remains pertinent, because unphilosophical lawyers still speak of logic in roughly the way Holmes did, and are often chided for it by philosophically sophisticated critics, for whom logic is no more than the study of formally valid inference. Thus conceived, it cannot come into conflict with the unreflectively experiential or explicitly functional modes of legal reasoning to which Holmes and his successors have contrasted it.

Holmes (like most lawyers today) conceived legal logic in a colloquially familiar way, as reasoning driven by a concern for consistency rather than for results. He was the most influential critic of the view that a legal system could or should reach all its judgments by deduction from a coherent system of abstract and yet precise general principles, on the model of Euclidean geometry. In his own day, both German Pandectist and American Langdellian legal science proclaimed this ideal, which Holmes thought both impossible to achieve and pernicious to pursue.

However, he thought law should be very largely driven by logic, in three more limited senses. First, most individual legal judgments should be reached by deduction, the application of a clear rule to objectively ascertainable facts. Second, the effort to formulate the law into a coherent system of general principles was worthwhile, though the principles served as classifiers and presumptions rather than as axioms. Finally, reasoning by analogy, driven by the search for local (as distinguished from system-wide) consistency, was often an appropriate alternative to instrumental or "legislative" reasoning in the decision of legal questions that rules left undetermined. Holmes was, in our terms, a skeptic neither of rules, nor of principles, nor of reasoning by analogy, and to the extent he has been enlisted in support of any or all of those forms of legal skepticism, what he said has been misunderstood.