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Formalism

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Full-Text Articles in Law

Levels Of Free Speech Scrutiny, Alexander Tsesis Apr 2023

Levels Of Free Speech Scrutiny, Alexander Tsesis

Indiana Law Journal

Inconsistencies abound throughout current exacting, strict, and most exacting scrutiny doctrines. Formalism also runs throughout recent cases that have opportunistically relied on the First Amendment in matters peripherally concerned with core principles of free speech. Jurisprudence that relies on the exacting scrutiny standard remains significantly under-theorized. The uncertainty creates doctrinal flux that shifts from case-to-case. The same unexplained malleability appears in the most exacting scrutiny jurisprudence. The Court, moreover, sometimes refers to these two standards as equivalent to strict scrutiny. On the other hand, during the last decade, and most recently in 2021, various opinions have also used exacting scrutiny …


Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa Jan 2023

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa

Articles by Maurer Faculty

Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.

Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets …


The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy Jan 2022

The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a …


The Intersection Of Judicial Interpretive Methods And Politics In Supreme Court Justices’ Due Process Opinions, Julie Castle Jan 2022

The Intersection Of Judicial Interpretive Methods And Politics In Supreme Court Justices’ Due Process Opinions, Julie Castle

Capstone Showcase

The Supreme Court, a nine seat bench of unelected and lifetime tenured Justices, determines the constitutionality of dozens of cases each year. In this thesis, I research to what extent the political affiliation of the Justices affect the judicial decision making process and, ultimately, outcomes. Using pattern matching, I evaluate due process opinions from Justice Breyer, Justice O’Connor, and Justice Scalia, all of whom have established constitutional analysis methods, in order to determine if they reasonably adhere to their established method. Due to the highly political nature of due process cases, variance between the expected (adherence to the Justices’ established …


Contract Schemas, Roseanna Sommers Oct 2021

Contract Schemas, Roseanna Sommers

Articles

This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one …


Settled Law, G. Alexander Nunn, Alan M. Trammell Jan 2021

Settled Law, G. Alexander Nunn, Alan M. Trammell

Scholarly Articles

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even …


A Formalist Theory Of Contract Law Adjudication, Felipe Jiménez Jan 2021

A Formalist Theory Of Contract Law Adjudication, Felipe Jiménez

Utah Law Review

Formalism has a bad name. It is often seen as a naïve and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture and has been particularly influential in contract law. This Article challenges this prevailing view and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes.

The argument of this Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article …


Twenty-First Century Formalism, Thomas B. Nachbar Dec 2020

Twenty-First Century Formalism, Thomas B. Nachbar

University of Miami Law Review

Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, formalism has simply become an epithet used to describe virtually anything they dislike in legal thinking. Used often and inconsistently as a stand-in (and frequently a strawman), formalism’s distinct identity has been lost, its meaning merged with whatever methodology it is being used to support or attack.

This Article seeks to separate formalism …


Portrait Of A Rabbinic Dissident: Akavya Ben Mehalalel Confronts The Judicial Establishment, Moshe Sokol Jan 2020

Portrait Of A Rabbinic Dissident: Akavya Ben Mehalalel Confronts The Judicial Establishment, Moshe Sokol

Touro Law Review

No abstract provided.


Politics And Authority In The U.S. Supreme Court, Joshua Fischman Sep 2019

Politics And Authority In The U.S. Supreme Court, Joshua Fischman

Cornell Law Review

Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent divide in the Court, however, which has been largely overlooked by scholars, the media, and the public. This second divide has arisen most often in cases involving the jury trial right, the Confrontation Clause, the Fourth Amendment, punitive damages, and the interpretation of criminal statutes. This Article argues that this divide represents disagreements among the Justices over how to determine the limits of the authority of legal actors, particularly juries, executive officials, and trial judges. On one …


The Rhetoric Of Constitutional Law, Erwin Chemerinsky Aug 2019

The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …


"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal Aug 2019

"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal

Indiana Journal of Global Legal Studies

President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] …


The Federal Circuit As An Institution, Ryan G. Vacca Jan 2019

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …


Using The Master’S Tool To Dismantle His House: Derrick Bell, Herbert Wechsler, And Critical Legal Process, William Rhee May 2018

Using The Master’S Tool To Dismantle His House: Derrick Bell, Herbert Wechsler, And Critical Legal Process, William Rhee

Concordia Law Review

This Article retells the life stories of Derrick Bell, a founder of Critical Race Theory, and Herbert Wechsler, a founder of the Legal Process School, to suggest a synthesis of their often conflicting paradigms—Critical Legal Process. Critical Legal Process’s fundamental question is whether the Master’s tool, the so-called rule of law, can be considered—in the words of Wechsler’s most famous article—a genuine “neutral principle.” Can the Master’s favorite tool be repurposed to dismantle the very house it built? Can the same rule of law that was abused to build the racist Jim Crow system not only dismantle that explicitly racist …


Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke May 2018

Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke

Michigan Journal of Environmental & Administrative Law

How administrative law applies to tax rulemaking is an open and contested question. The resolution of this question has high stakes for the U.S. tax system. The paradigm is shifting away from so-called “tax exceptionalism”—where Treasury action is considered effectively exempt from the Administrative Procedure Act (the “APA”) and related administrative law doctrines. This paradigm-shift is salutary. However, currently prevailing anti-exceptionalist theory—an administrative framework for tax that is rapidly gaining credence within both the federal judiciary and the legal academy—threatens to destabilize the U.S. tax system. This formalistic approach to administrative law in tax rulemaking has the potential to invalidate …


Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon Apr 2018

Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon

University of Richmond Law Review

The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.


The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton Apr 2018

The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton

Michigan Law Review

A review of Richard A. Posner, The Federal Judiciary.


One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller Jan 2018

One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller

Touro Law Review

No abstract provided.


Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers Nov 2017

Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers

Maine Law Review

Thirty years ago Grant Gilmore argued that “Contract” was dead. This lecture, delivered as 2004 Godfrey Scholar-in-Residence at the University of Maine School of Law, considers the cause of death. Since the expired doctrines arose in a common law process, the lecture argues their demise resulted from the failings of lawyers, especially lawyers' commitment to wooden, formalist legal methods. I explore some of the reasons why lawyers became committed to these methods, and argue that even were nineteenth-century formalistic practices resurrected, modern lawyers must still be prepared to understand the potential effects business contexts might have in contract disputes and …


Distributive Justice And Donative Intent, Alexander Boni-Saenz Jul 2017

Distributive Justice And Donative Intent, Alexander Boni-Saenz

All Faculty Scholarship

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills …


Is The Supreme Court Concerned With Patent Law, The Federal Circuit, Or Both: A Response To Judge Timothy B. Dyk, Timothy R. Holbrook Apr 2017

Is The Supreme Court Concerned With Patent Law, The Federal Circuit, Or Both: A Response To Judge Timothy B. Dyk, Timothy R. Holbrook

Chicago-Kent Journal of Intellectual Property

This essay is a response to Hon. Timothy B. Dyk, Thoughts on the Relationship Between the Supreme Court and the Federal Circuit, 16 CHI.-KENT J. OF INTELL. PROP. 67 (2016). In it, I address the reasons for the Supreme Court's engagement with patent law. In other words, is the Court interested in patent law itself, or is there something about the Federal Circuit as an institution that has garnered the Court's gaze. I conclude it is a combination of the two. The Court is concerned with certain aspects of patent doctrine, but it is also concerned with the Federal Circuit, …


Law As Instrumentality, Jeremiah A. Ho Apr 2017

Law As Instrumentality, Jeremiah A. Ho

Faculty Publications

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …


Contract Exposition And Formalism, Gregory Klass Feb 2017

Contract Exposition And Formalism, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Formalism in contract law has had many defenders and many critics. What courts need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by developing a general theory of the rules of contract interpretation and construction—contract “exposition.” The theory distinguishes inter alia two forms of formalism. Formalities effect legal change by virtue of their form alone, and thereby obviate interpretation. Examples from contract law include “as is”, the seal and boilerplate terms. Formalities work when parties intend their legal effects, that is, when they perform juristic acts. Plain meaning rules, …


Law As Instrumentality, Jeremiah A. Ho Jan 2017

Law As Instrumentality, Jeremiah A. Ho

All Faculty Scholarship

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …


Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern Oct 2016

Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern

Scholarly Publications

The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a …


Multifactoral Free Speech, Alexander Tsesis Oct 2016

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …


"But I Know It When I See It": Natural Law And Formalism, William Hamilton Bryson May 2016

"But I Know It When I See It": Natural Law And Formalism, William Hamilton Bryson

Law Faculty Publications

Review of R. H. Helmholz's book, Natural Law In Court: A History of Legal Theory in Practice (2015); and David M. Rabban's book, Law's History: American Legal Thought and the Transatlantic Turn to History (2013).


Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Kyle Chen, Harold S. Haller, Juliet P. Kostritsky, Wojbor A. Woyczynski Jan 2016

Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Kyle Chen, Harold S. Haller, Juliet P. Kostritsky, Wojbor A. Woyczynski

Faculty Publications

The legal community has long recognized that business corporations heavily favor Delaware as the state of incorporation. However, a recent study of merger agreements from 2002 by Eisenberg and Miller suggested that despite Delaware’s prominence as the place of incorporation, companies “flee” from Delaware with respect to both choice of law and forum, and instead prefer New York. We set out to study data from 343 merger and acquisitions contracted on between January 1, 2011 and June 30, 2011 in an attempt to verify this conjecture. Our study is important for two reasons. First, the 2011 data set show that …


Formalism And Functionalism In Antitrust Treatment Of Loyalty Rebates: A Comparative Perspective, Daniel A. Crane Jan 2016

Formalism And Functionalism In Antitrust Treatment Of Loyalty Rebates: A Comparative Perspective, Daniel A. Crane

Articles

It is a widely held belief that U.S. antitrust law has long been characterized by economic functionalism and that European antitrust law has long been characterized by legal formalism.' The received wisdom began to change in Europe a decade ago when the Directorate General Competition of the European Commission (DG Comp) began to advocate a more "effects-based" analysis of abuse of dominance. Two factors arguably contributed to this change. First, the DG Comp became increasingly influenced by economists who had little use for the old formalism. Second, as Europe trie to spread antitrust to developing antitrust regimes across the world-and, …


The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott Jan 2016

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott

St. Mary's Law Journal

When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both …