Lochner’s formalism wrongly treats contracting as definitionally contained in liberty.

Evidence

When I say that pelicans are birds, the truth of the statement follows inexorably from the meaning of the term “bird.” If someone disagrees, or points at a living, breathing, flying pelican and says “That is not a bird,” she simply does not know what the word “bird” means.’ We criticize Lochner as formalistic because it treats the word “liberty” (or the words “life, liberty, or property, without due process of law”) as being like the word “bird” and the privilege of contracting as being like a pelican, i.e., subsumed in the broader category. According to the reasoning in Lochner, if you don’t know that contracting for labor without governmental control is an example of liberty, then you just don’t know what the word “liberty” means. — Frederick Schauer, Formalism, 23

Categorization

• DEFINE: Clarifies what formalism means in the Lochner critique: treating a controversial classification as if it were a definitional subsumption.
• XREF: Connects to the bird/pelican analytic-subsumption distinction used throughout analytic philosophy and legal formalism debates. — connects to: Although Lochner is criticized for the length of its reach, a closer look reveals that it is not the result that is condemned as formalistic but rather the justification for that result. The formalism in Lochner inheres in its denial of the political, moral, social, and economic choices involved in the decision, and indeed in its denial that there was any choice at all.; Lochner is merely one example in which a false assertion of inexorability is decried as formalistic. Much contemporary criticism of Blackstone, Langdell, and others of their persuasion attacks their jurisprudence on similar grounds. They stand accused of presenting contestable applications of general terms as definitionally incorporated within the meaning of the general term.

Related

• Although Lochner is criticized for the length of its reach, a closer look reveals that it is not the result that is condemned as formalistic but rather the justification for that result. The… (similarity 0.81)

Broader Connections

• Although Lochner is criticized for the length of its reach, a closer look reveals that it is not the result that is condemned as formalistic but rather the justification for that result. The… #expands (0.70)
• Lochner is merely one example in which a false assertion of inexorability is decried as formalistic. Much contemporary criticism of Blackstone, Langdell, and others of their persuasion attacks… #corroborates (0.65)