The New Formalism in Private Law

Abstract

Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. The New Private Law is an intellectual movement characterized by a confluence of different non-legal methodologies and diverse normative commitments. Its eclecticism gives it a perplexing, if not paradoxical, appearance, and the ties that bind those of us allied to it might seem tenuous. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of aspects of American legal realism and in lament over some of its continuing legacies in private law.

However, New Private Law scholars have yet to articulate a scholarly methodology that might define, motivate, and differentiate our work. This Article fills that gap. In it, I argue that the New Private Law is rooted in a shared – if implicit – new formalist methodology and provide the first programmatic explanation of it. The Article does several things. It provides a clear statement of methodological tenets of the new formalism. It relates these to wider developments in general jurisprudence, with particular attention to scholarship on law and practical reason. It explains the sense in which the new formalism is novel, especially relative to older varieties of legal formalism. It distances the new formalism from foolish and implausible claims prominent in pejorative renderings of legal formalism. It shows how the new formalism is reflected in New Private Law scholarship. And it explains how a clear grasp of new formalist methodology enables reconciliation of the otherwise baffling eclecticism in the New Private Law while promising new and fruitful avenues for its future development.

Keywords: Legal Theory, Private Law Theory, Jurisprudence, New Private Law, Methodology, Formalism, Realism, Practical Reason, Legality, Rule of Law, Law and Morality

JEL Classification: D82, K10, K11, K12, K40