Must Formalism Be Defended Empirically?

University of Chicago, John M. Olin Law & Economics Working Paper No. 70

42 Pages Posted: 10 Mar 1999  

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: March 1999

Abstract

This paper urges that one of the great, quasi-theological debates in legal theory depends on answers to empirical questions. The debate is whether courts should be "formalistic," that is, whether they should interpret statutory terms in accordance with their literal meaning, or whether they should be permitted to reject literal meaning by reference to "purposes," or canons of constructions, or considerations of policy. Any good answer turns on what approach will minimize decision costs and error costs, and that depends on empirical judgments about the likely performance of courts and legislatures. There is discussion as well of information-eliciting and market-mimicking default rules in the interpretation of contracts and statutes.

Suggested Citation

Sunstein, Cass R., Must Formalism Be Defended Empirically? (March 1999). University of Chicago, John M. Olin Law & Economics Working Paper No. 70. Available at SSRN: https://ssrn.com/abstract=155435 or http://dx.doi.org/10.2139/ssrn.155435

Cass R. Sunstein (Contact Author)

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Harvard University - Harvard Kennedy School (HKS) ( email )

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