Tuesday, May 2, 2006
The term "formalism" covers a multitude of sins. The "legal science" of C. C. Langdell has little obvious relationship to the practical formalism of transactional lawyers and clients, or to the economic analysis used by many of those who are called "formalists" today. In an interesting new paper, Mark Movsesian (Hofstra) follows up on his earlier work on Samuel Williston to examine differences between the old and the new strands. The paper is Formalism in American Contract Law: Classical and Contemporary, forthcoming in Ius Gentium. Here's the abstract:
This essay compares classical and contemporary formalism in American contract law. Using the work of Samuel Williston as an example, it argues that there are some unappreciated similarities between the two types of formalism, but also one major difference: compared to contemporary formalism, classical formalism was dramatically undertheorized. Given what they saw as their project, the classicists’ lack of interest in theory is understandable. Unlike today’s legal academics, classicists did not see themselves primarily as members of the university world. They thought of themselves primarily as lawyers and directed their scholarship primarily towards the profession. More than anything else, the difference between classical and contemporary formalism can be explained by the changing self-image of the American legal academy.