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"Lit. Theory" Put To The Test: A Comparative Literary Analysis Of American Judicial Tests And French Judicial Discourse, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce …