Formalism and Realism in Private Law
Formalism and Realism, in The Oxford Handbook of the New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily Sherwin, and Henry E. Smith, eds., Oxford University Press 2020)
29 Pages Posted: 11 Jan 2021
Date Written: January 9, 2021
This chapter examines the benefits and drawbacks of determinate rules in private law: rules provide settlement and support coordination, at the cost of some undesirable results in particular cases. It also traces the traditional methods used in equity to soften the adverse consequences of enforcing rules. It compares, and finds misguided, the dismissive attitude that many American Legal Realists adopted toward rules. It concludes, however, that the damage done to the artificial but useful law/equity divide may be irrevocable.
Keywords: private law, settlement, coordination, undesirable results, equity, enforcing rules, American Legal Realists, law/equity divide
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