Frederick Schauer — Formalism

14 published claims from this book.

• 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…
• Believing abstract legal terms are natural kinds hides the choices behind their application.
• Decision by rule has genuine virtues that formalism deserves credit for.
• Definitional contingency does not imply any actor may change a definition.
• Formalism is treating as inexorable any choice that is not.
• Formalism’s refusal to consider variable factors is what gives rules their force.
• General vague norms give way to specific rules as communities lose shared meanings.
• Legal terms have settled meaning in the core and debatable meaning in the penumbra.
• Lochner’s formalism wrongly treats contracting as definitionally contained in liberty.
• Once we disentangle and examine the various strands of formalism and recognize the way in which formalism, rules, and language are conceptually intertwined, it turns out that there is something,…
• The contingency of definition hardly entails the view that it is within the province of any one actor, legal or otherwise, to change it. Neither you nor I have the power to make it proper to use…
• Thus, choice is masked by the language of linguistic inexorability.
• Thus, one view of the vice of formalism takes that vice to be one of deception, either of oneself or of others. To disguise a choice in the language of definitional inexorability obscures that…
• Thus, one view of the vice of formalism takes that vice to be one of deception, either of oneself or of others. To disguise a choice in the language of definitional inexorability obscures that…