The New Formalism
31 Pages Posted: 11 Jan 2000
Date Written: September 6, 1999
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.
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