Legal Formalism
Mark Gergen at Balkinization has a good comment on legal formalism:
Others have asked for an example of this type a scholarship. A modern exemplar is Peter Birks, who was the leading unjust enrichment (restitution) scholar in the English speaking world (as well as being a leading scholar on civil law and roman law). No one is doing work of Birks’ caliber of that type in the private law in the United States. Birks’ stature in England, and it was richly deserved, is comparable to the stature of Posner and Dworkin here.
If you will forgive me some gross caricatures, a comparison of Birks with Posner and Dworkin is instructive, for I believe each exemplifies different ways of thinking about the law. Posner thinks of law as an instrument. Dworkin thinks of it as a principled enterprise. Birks thought of it as a body of knowledge (I recall him saying “law is a library”) that needs to be organized and explained. Most American legal academics would think his passion for taxonomy — legal classification — odd or daft.
I think Einer is right when he states that conceptual analysis is little valued by high-end American academics, outside the field of constitutional law. I have fairly good anecdotal evidence. In a comment to Einer’s original post I sketched some possible reasons. I won’t repeat the anecdote.
I want to close this post with a claim about a related phenomenon. The quality of legal argument and analysis in American courts, in particular state supreme courts, is often quite poor on issues of private law that the readers of this blog are likely to think arcane or technical. The quality pales in comparison to decisions of the current House of Lords, which I believe now is doing work of the caliber of the New York Court of Appeals in the era of Hand, Cardozo, and Andrews. While I am sure sociological and institutional reasons partly account for the generally higher quality of conceptual legal analysis in England, I believe it also is partly attributable to English lawyers thinking of private law, even in its arcane and technical parts, like American tax practitioners think of tax law, as a body of law worth mastering.
Mark Gergen’s comment about Birks and tax law is good. The formalist project is to take a body of individual laws and decisions and find some underlying principles that can be applied to new situations. That’s pretty scientific, isn’t it? Estoppel has no less existence than the neutron. Like the neutron, it might be replaced by something even more basic. Quarks are a way to explain neutrons; surplus maximization is a way to explain estoppel.
Law-and-Economics, my own field, both explains and proposes (aren’t those better words than positive and normative?). The explaining part is easiest to relate to formalism. Judges have long issued opinions on negligence in tort. Judge Hand explains them by his cost-benefit rule. Economists then note that this is an application of their idea of surplus maximization. The only reason the economists are not formalists is that they bring in their ideas pre-formed from another discipline rather than by induction from legal opinions.
An example I know well is my own “The Economics of Agency Law and Contract Formation.” Judges and hornbooks long groped to explain when an agent’s assent makes a contract binding on the principal. Myres McDougal’s master’s thesis under Corbin back in the 1930’s was a typical Legal Realist product showing by a million cases on one side and a million on the other that judges were very confused in their use of doctrines like estoppel, apparent authority, actual authority, ratification, etc. and just came down on whatever made sense. In my article, I argue that in the back of their minds the judges and scholars had the idea of surplus maximization, a variant of the least-cost-avoider subidea. (I thought my article would be perfect for a law review, rather than the law-and-econ journal it ended up in, but its topic is sketchily covered, if that, in student editors; first-year contracts course and perhaps isn’t interesting to them anyway).
The problem with legal realism was that it had no theory, just the idea that judges made policy and should think about outcomes. It was “Sandra O’Connor-style law”. Formalism is theoretical, rather than case-by-case. That’s why modern doctrinal analysis of Supreme Court decisions doesn’t have the same feel as legal formalism despite its nitpicking about the precise words of decisions. Constitutional law is really driven by disparate policy views rather than by single underlying ideas, so the attempt to find an overall theory is doomed and just turns into rhetoric.
Tax law is a good counter-example. There, nitpicking can actually be productive, because the successive statutes do not pretend to be consistent with each other, and underlying ideas such as reducing cheating and horizontal equity can be applied where there is ambiguity. There, doctrinal law shades into interdisciplinary law.