THE LAW WANTS TO BE FORMAL.

• Author: Sainton, Chaim

INTRODUCTION 1068 I. FORMALISM IN PRIVATE LAW: REALISM AND RESILIENCE 1073 A. Contract Law: Offer and Acceptance 1073 1. Contemporary American Caselaw 1073 2. English Caselaw 1074 3. American Law Through the Twentieth Century 1075 B. Unjust Enrichment/Property Law 1077 1. Contemporary Anglo Law 1077 2. Contemporary American Law 1078 3. American Law Through the Twentith Century 1078 C. Equity 1080 1. The Freewheeling Constructive Trusts of American Law 1080 2. The Conceptualized Constructive Trusts of English Law 1081 D. Tort 1082 1. Duty Analysis in American Law 1082 2. Duty Analysis in Contemporary English Law 1083 3. Trends in Twentieth Century American Tort Law. 1083 E. Interim Summary 1085 II. RELOCATING FORMALISM 1088 III. FORMALISM IN STATUTORY INTERPRETATION 1090 A. Theories of Statutory Interpretation 1091 B. Textualism and the Shrinking Role of Private Law 1093 1. Implied Rights of Action 1093 2. The Demise of General Federal Common Law 1094 C. Textualism and the Freezing of Equity 1096 D. Textualism and Trusting Trust Law 1098 IV. PROCEDURAL FORMALISM 1100 A. Contemporary Standing Doctrine 1102 B. Standing and Private Law 1103 V. FORMALISM IN THE LAW OF STATE LIABILITY 1106 A. Tax Refunds 1107 B. Constitutional Torts 1109 C. Torts Committed by State Officials 1110 VI. ERIE, PROCEDURE, AND PRIVATE LAW 1112 CONCLUSION 1114 INTRODUCTION

This Article presents a straightforward claim: the law wants to be formal. The argument is developed via a deep comparative dive into how formalism and its alternatives are distributed and practiced in English and American law. The comparison is apt because these systems share common historical roots and at one point analyzed legal questions through similar doctrinal frameworks. (1) Over time, however, they drifted apart and today differ on which legal areas are highly technical and formal, and which are more flexible and context sensitive.

From the American Revolution through the early decades of the twentieth century, both English and American legal cultures were dominated by the common law, especially the emerging areas of contract, tort, property, agency, and equity, now classified as private law. These subjects comprised the vast majority of course offerings in the nascent American law schools and the scholarship published in their law reviews. (2) Lawsuits were typically two party affairs that focused on rights, duties, and obligations, while lawyers on both sides of the Atlantic maintained relatively confined accounts of these concepts.

In the early-to-middle decades of the twentieth century, however, much of this began to change. A movement known as American legal realism challenged the idea that private law was an autonomous system of legal reasoning or that hard cases could be decided by precise legal logic alone. Realists argued that private law-like all law-was dominated by political, social, and economic contests that neither could nor should be excluded from direct consideration by the law. Judges ceased to be seen as legal technicians working within the narrow confines of the law and were recast as powerful figures whose actions both informed and influenced the political sphere. (3)

Hand in hand with the deconstruction of private law came the open embrace of the role of the state in creating law. Legal analysis shifted away from private law and toward multiparty and multifactored questions of statecraft brought about by the New Deal. (4) Law was no longer an autonomous external force acting on the community, but a creation of the political community itself. (5) Private law never went away under this regime, but was marginalized. Today it operates mainly in the increasingly shrinking gaps of the regulatory state. (6)

Nevertheless, the formalism despised by the legal realists never abated, and as the twentieth century progressed, a new brand of uniquely American formalism emerged. This version is grounded in a structural reading of the Constitution's allocation of power between governmental branches and finds its doctrinal expression in the law of statutory interpretation and jurisdiction. Like its private law analogue, American formalism is based on a structural analysis of legal relationships and aims to confine legal analysis and limit recourse to broader political values. Yet there is a difference. Private law concepts such as duty in tort, formation and privity in contract, and the doctrines of equitable remedies restrain analysis by focusing on the parties' primary duties and obligations. On the other hand, American formalism is designed to restrain the role of courts within the constitutional system.

Comparisons between English and American law are revealing because the realist account of private law had far less influence in England and Commonwealth countries. Though nearly all common-law jurisdictions have transitioned into more active administrative states, private law continues to play a central role in the life of English law. It not only dominates its traditional sphere, but is relevant to a range of legal questions American law addresses via statutory and procedural tools. On the other hand, the English approach to statutory interpretation is considerably more open-textured than American textualism, and does not maintain the thick procedural apparatus that overlays so much of American civil litigation.

My argument is that these trends are related. Judges operating in the Anglo-American sphere face constant pressure to explain how their decisions are different from those reached through overtly political processes. The classical answer is that law is different because it adheres to a set of conceptualized principles formally applied by learned judges. Legal analysis thus gravitates toward areas of law the body politic perceives as sufficiently formalized so as to constrain judicial activity and distinguish it from the political realm. By the same token, law will move away from areas seen as too accommodating of social preferences, too subject to desires of the lawyerly class, and too realist.

While realism succeeded in deconstructing private law, this success both caused and enabled private law to become less systemically important to the workings of American law. As legal thought migrated to statutory and jurisdictional concerns, these areas were theorized into formalist doctrines that pushed legal analysis inward. On the English side however, private law remains relatively immune to realist critique and retains its primary status within the legal system. There is less need for formalized laws of statutory interpretation and jurisdiction, and these doctrines are comparatively absent from the English landscape.

The argument proceeds as follows: Part I showcases the gap between how traditional questions of private law are adjudicated within each system. Part II offers a contrast between the conceptual accounts promoted by Peter Birks, the leading proponent of private law formalism in English law, and American formalism grounded in statutoiy and procedural law, as offered by Justice Antonin Scalia. Parts III and IV explain how the increased formalization of American statutory and procedural law displaced private law from the prominent position it once held. Part V tests the thesis out by comparing how each system mediates the relationship between citizens and their government. American law addresses these questions through public, procedural, and statutory law, while the Anglo world leans on private law to accomplish similar ends. Part VI then considers the implications of Erie on the allocation of private and procedural law. The Article concludes by explaining why the law craves formalism.

A note on nomenclature. As used here, formalism is an approach that limits the range of factors relevant to legal decisions. Formalism directs analysis inward toward authorized sources of law and away from broader moral, social, or political considerations hovering in the background. (7) It militates against interpreting rules in light of consequences or finessing application to better match the rule's rationale. (8) Formalism favors rules over standards, shifting authority away from the rule-applier toward the rule-creator.

Conceptualism reinforces formalism in two ways. First it explains why legal analysis should be confined. The existing legal doctrines derive from the law's conceptual core which preexist and stand outside the domain of political contestation. (9) Formalism vindicates the rule of law by ensuring that outcomes derive from the conceptual legal core rather than social preferences of its decisionmakers. Second, when established doctrines do not provide a clear answer to novel legal questions, the answer can be derived by precise reasoning from the law's internal structure. We can see formalism as the process lawyers use to reach decisions, and conceptualism as the theoretical account of legal relationships articulated by academics and scholars. (10)

Realism takes the opposite view and argues that formalism is rarely as determinative as its devotees assume. Judges only appear to decide cases on narrow legal grounds, but really make debatable value choices that are presented to the public as inexorable legal logic. Because decisions turn on a broader range of considerations than formalists acknowledge, realists think law should be more transparent and openly embrace the range of possible outcomes. Realist doctrine tends to emphasize the multiplicity of factors, the value-choices, and consequences embedded in legal decisions.

Realists also deny the law has a preexisting or fixed conceptual core that lawyers can identify and reason from. Rather than coherence, they find the body of caselaw merely encodes unresolved competing considerations into legal doctrine, leaving sufficient material for each side to make reasonable arguments from authorized sources of law. (11) Rather than search for elusive principles that do not exist...