Forms of Formalism

Does modern American legal formalism exist, and what might that question mean? Three modes of self-styled legal formalism are presented at this Symposium: (1) formalism as anticonsequential morality in law; (2) formalism as apurposive rulefollowing; and (3) formalism as a regulatory tool for producing optimally efficient mixes of law and norms in contract enforcement regimes. Even superficially, the problems these "formalisms" aim to solve and their operational structures share little in common. But beyond their obvious structural differences, these modern "formalisms" diverge even more profoundly in their underlying conceptions of morals, politics, and society. Indeed, the animating conceptions of morality and society of some of these modes are antithetical to those underlying others. Much has been written already about the analytical case for and against some of these formalisms, particularly rule-following, and I want to minimize the rehearsal of those analytical contests. Instead, it is the underlying assumptions I want to explore, with the aim of showing the distinct world views that appear to motivate each mode of modern formalism. Because both the structure of these modern formalisms and their underlying justifications differ so sharply, it is implausible to see them as representing any unified, coherent vision of modern legal formalism.