Rossi on Slaves, Indians, and Legal Formalism

Christopher Rossi, UiT, Arctic University of Norway, has published Slaves, Indians, and Legal Formalism in 19th Century America. Here is the abstract.

The US engagement with 19th century international society saw the maturation of its approach toward international law. This paper focuses on two historical considerations that helped to shape that character--ending the international slave trade, and Indian removal. An emerging legal methodology of legal formalism helped to rationalize this engagement, and affected the young republic's engagement with the world. Understanding the rise of legal formalism, where it came from and what were its influences, uncovers a significantly American story of ambivalence, which has shaped US foreign policy vacillations between themes of universalism and unilateralism, and international community and international society.

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Nachbar on Form and Formalism @UVALaw

Thomas Nachbar, University of Virginia School of Law, has published Form and Formalism as Virginia Public Law and Legal Theory Research Paper No. 2018-01. Here is the abstract.

Formalism has become an insult. Defined by its critics as the mechanical (even disingenuous) application of rules, or unthinkingly equated with textualism or originalism, the various forms of formalism supposedly promise legal certainty. Having been found unable to provide that certainty, formalism been consigned by its critics to the role of foil for other, more promising, approaches. Yet most critics of formalism inaccurately conflate modern formalism, which emphasizes form, with the deterministic formalism of the Langdellian legal order. Far from the unrealistically deterministic, conceptualist understanding of law attacked by the Realists, modern formalism is best understood as a commitment to form in legal interpretation and legal thinking. Once we free formalism from the role it has been given by its detractors, its merits become more apparent. Formalism allows us to focus not just on legal outcomes, but on the form of the rules that generate those outcomes. Formalism is a recognition that law must appear in some form and that law is an act not only of social control but of social communication. By acknowledging the view of the law that formalism represents we can uncover previously unidentified meaning in law, lawmaking, and adjudication.

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Tamanaha on the Combination of Formalism and Realism

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, has published The Combination of Formalism and Realism as Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Here is the abstract.

For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.

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