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The article explores the intuitive formalism in contract law in the U.S. Topics discussed include laws governing consumer contracting, contract law of the first-year contracts, doctrines related to the contracts of adhesion, and infleuence of doctrinalism over realism on contrat laws. It also discusses how formalist intuitions affect consumer behavior in the country.

According to conventional wisdom, property has disintegrated. Property law has undergone many changes since the heyday of Legal Realism, and many of these changes were both inspired by Realism and went under the banner of the Realists' "bundle-of-rights" conception of property. However, many of the features of property law most denigrated by the Legal Realists and their successors have proved surprisingly resilient. These "doctrinal" features include the notion of property as a thing, the importance of possessory rights, and the greater degree of formalism in property than in contract law. In this Article, I argue that there is a common cause to the Realists' criticism of these features and their endurance in the face of that criticism: all of these features of property are manifestations of property law's basic architecture as a system. Because of the inherent complexity of relations—especially those that are less personalized—in private law, a system for providing a first cut at managing these relations presents problems of information costs that are unique to property. These costs, usually left out of realist analysis, are hard to ignore entirely and push property law to treat private interactions in a more modular fashion than the realist bundle-of-rights picture would lead one to expect. Moreover, the underappreciated flexibility and robustness of a modular architecture allows property law to absorb—at some cost—a great deal of change without alteration of its basic nature. I apply this analysis to Realist and post-Realist approaches to asset definition, trespass and nuisance, and the standardization of property forms. The greatest engine for change from Legal Realism in certain areas of property may be simple ignorance of the complexities of earlier law. [ABSTRACT FROM AUTHOR]

The article discusses the role of distributional analysis in critical criminal law theorizing, and it mentions a critical race theory, racial justice, and equal rights in America. According to the article, tensions between formalism, individualism, and liberalism often arise during critical race theorizing. Feminist legal theory is mentioned, along with the U.S. penal system and the efforts to identify and address punitive measures. Law enforcement and minorities in America are examined.

Several authors have examined the optimal k-majority rule using a variety of criteria. We formalize and extend the original argument laid out by Buchanan and Tullock (The calculus of consent: logical foundations of constitutional democracy, ) using a decision theoretic analysis from the perspective of an individual voter. Unlike previous formalizations, voters in our study are members of one or more groups. This allows us to examine cases wherein different voters have starkly different interests. Furthermore, voters in our study can err in their judgments of proposals allowing us to model potential irrationalities in the choice of an optimal k-majority rule. We consider both up or down votes on a single proposal as well as votes over a series of proposals. We find that the optimal k-majority rule depends on a number of parameters, most notably the number of rounds needed to create a proposal that will pass. Group membership has almost no affect. Furthermore, if two groups are at odds, then the external cost function can actually rise over some range of $$k$$ ; if voters err systematically in their judgment, more inclusive k-majority rules, such as unanimity rule, can fail to pass Pareto preferred proposals. Our results should help advance a classic work in Public Choice. [ABSTRACT FROM AUTHOR]

The article offers information on the history, purpose and significant need of appellate preservation doctrine of collateral estoppels to address the law issues of preclusion in amicus curiae briefs in the U.S. Topics discussed include significance of the Takings Clause of the Fifth Amendment in physical taking of her property, analysis of a pair of alternative regimes based on intuition and formalism, and the judicial preservation of the Citizens United v. Federal Election Commission case.

Family law is simultaneously moving toward and away from formalist decision making. Examining family law across its various component doctrines--custody disputes, child support, jurisdiction, and parentage--reveals these two competing trends. In some of these areas, scholars and lawmakers have recognized that litigating under open-ended, amorphous standards is unpredictable and often painful, with costs that undermine the very purposes served by these legal frameworks; in these areas we are witnessing a turn toward determinate rules over judicial discretion as the preferred means of resolving disputes. In other areas, however, family law is experiencing a trend toward more flexible decision making that prioritizes functional assessment of relationships above formal legal status. This Article brings all of these developments into the same frame for the first time. It asserts that the "functional turn" in some areas of family law would benefit from the lessons learned in other areas: that indeterminate standards and contextualized decision making do not necessarily provide the best means of doing justice for separating families. I argue instead for a new formalism, one that extends the profound advantages of certainty and stability to a wider range of family relationships. [ABSTRACT FROM AUTHOR]

This article argues that American Studies has suffered from an exaggerated influence of formalism manifesting itself in a detached kind of 'universal theory' that favors abstract non-referentiality and hence irrelevance. Its concepts often originate in contexts that do not apply to the fields in which they are then applied. In an effort to unpack the history of this issue, this article outlines the genealogy of a philosophical 'long modernism,' originating in idealism and dialectics, traversing logical positivism, existentialism, and ending in deconstruction and several post-movements that merely 'critique' their ancestry rather than opt for paradigmatic change. An important common denominator of these related approaches is their phenomenological 'perceptualist' fallacy of trying to look at concepts directly, which fuses (and confuses) the two levels of perception and conceptualization into one, and hence ignores the psychological negotiations of cognitive construction. A hermeneutic and supposedly objectivist 'textualist' approach should be replaced by a pragmatist credo of contextualization and attitudes influenced by certain views of the life sciences. Conclusive examples from American literature show that the canonized writers have always commented on this issue and questioned the relationship of concepts and reality in their work. [ABSTRACT FROM AUTHOR]

The article focuses on the formalist jurisprudence reflected in the judicial opinions of U.S. Chief Justice John Roberts. It describes formalism as comparable to social conservatism. It discusses how Roberts failed to recall his history in his opinion for the case Brown v. Board of Education of Topeka by following the reasoning of Justice John M. Harlan for the Plessy v. Ferguson case. In the author's opinion, the remark made by Roberts in Parents Involved in Community Schools v. Seattle School District No. 1 is worse than that in the Plessy case.

The article examines the use of capabilities approach (CA) as a normative approach to constitutional law in the U.S., including its contradiction with the so-called lofty formalism. The historical antecedents of the CA were taken into account, including those that influence traditions. CA's associated model of good reasoning was also discussed. Entitlement, combined capability and each person as an end were among the key features identified that distinguish CA from other constitutional law approaches. Information about its contrasting views with rival normative approaches of utilitarian welfarism and libertanian minimalism is presented.

The American Law Institute's Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism and shows that tile Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels, in fact, make a difference and assesses which recoveries are more (and less) likely under the Restatement's scheme. The final section returns to consider why the Restatement reprises the jurisprudence of classical formalism. I suggest that the mythos of legal conceptualism is necessary for introducing a new field that claims to reflect foundational principles of the common law's system of private ordering. Further this mode of discourse helps overcome the dissonance of creating a new field of law in a work that purports to restate existing doctrine. [ABSTRACT FROM AUTHOR]

Examines the rhetorical use of hostility in the Establishment Clause by the U.S. Supreme Court. Definition of hostility; Conflicts in the rhetorical use of hostility by the Supreme Court as part of its effort toward formalism in religion clause analysis; Background on the use of the concept of hostility by the Supreme Court.

This essay describes modern American legal pragmatism. Its origins in pragmatist philosophy are traced, and it is compared with the law and economics movement in American law and the formalist style of Continental legal theory. The essay argues that the inevitability of legal pragmatism in America, and its dispensability in Europe, reflect fundamental institutional and cultural differences rather than mere accidents of history or legal thought. [ABSTRACT FROM AUTHOR]

Americans need entirely new ways of thinking about organizations if we are to respond to wildly altered business and economic circumstances. Using the American Revolution as an analogy, Peters contends that U.S. organizations would do well to capture some of the spunk and agility of Ethan Allen's Green Mountain Boys who, using guerilla tactics new to 18th century warfare, outmaneuvered the better equipped but inflexible British forces. According to Peters, formality in organizations is incompatible with the reality of our 20th century economic wars. Peters presents two "organization maps," both bearing little similarity to each other beyond their circular scheme. The first depicts the inflexible, rule-determined, mass-producer organization of yesterday and today. The organization of the future, as portrayed in the second map, is radically different - a disrespector of formalism and a hustler, swift in action and in a constant state of improvement. Peters stresses what he calls the nonoptional nature of the latter: This is what U.S. organizations must become to survive in today's worldwide competitive environment. [ABSTRACT FROM AUTHOR]

This article focuses on the issues of vitality and formalism in government. The private business of the United States is very largely carried on by judgments informally arrived at though formal analysis may have supplied much of the data for such judgments; and the economy and efficiency of private business are the result of this informal process. In contrast to the informality of private business, public business tends to reach conclusions by processes of formal and arbitrary appraisal. In public elections votes are counted and not weighed. The vote of the ignorant or the self interested weighs as much as the vote of the informed and the disinterested. The more business comes under governmental control, the greater in business is this tendency to arrive at conclusions by consideration of the few dominant factors which can be formally and arbitrarily appraised. There is a constant tendency for formal rules to take the place of informal judgments. Business organization fluctuates with need, government organization tends to be rigid.

The article focuses on generation difference in value of the citizens of the U.S., Japanese-Americans, and Japanese. There is perhaps no more trite observation than to note that the last 20 years have been marked by a social revolution in virtually all parts of the world. The revolution has taken different emphases-political, economic, or social-in different areas. The triteness of the observation, however, does not detract from the profound importance of the phenomenon or from the obligation of behavioral scientists to examine its nature, its immediate impact, and possibly, at least, its short-range consequences. In this study the authors were interested in discovering whether the supposed prodigious changes in Japanese life and social organization were so deeply rooted that the personal values of one generation were markedly different from those of a younger generation. For various reasons, it has been widely accepted that the social revolution in Japan has been somewhat more marked than in the United States. The enormous expansion of Japanese economy from the devastation of war is one of the most remarkable achievements of its kind in all history.