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Full-Text Articles in Legal History
An Ethnography Of Abstractions?, Annelise Riles
Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky
Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.
The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard
The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard
Steve Sheppard
Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.
The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …