« House(Cat), M.D. | Main | The Horwitz Animals Update »

Monday, July 30, 2007

The New Formalism Panel

It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.

Larry kicked off with a short summary of what the new formalism was and was not.  Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'").  I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text.  We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.

This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law.  In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.

Hmm.  If somebody had, was my promise to Larry enforceable?

Anyway, I've decided to post a redacted form of my comments below the fold.

Here are the comments:

My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.

We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism. 

In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism.   I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike.   And a student of Luhmann would note the systemic paradox.   Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law.   It is like each side in a football game, or in war, invoking God on its side.

So we would begin by noting the strong explanatory power of realism or contextualism.   Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental.   The issue is merely whether we will be textual or contextual in our instrumentalism.

But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.   The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up.   In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences. 

But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms.   For in Schwartz and Scott, there are objective norms.   The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it.   And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally.    Say that to a contract lawyer, we nod our heads “uh huh,” and move on.    Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.   Setting the price is just "strategic behavior" and merits no discussion.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first.   But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.

It seems to me the world works from the first-person not the third-person perspective.    Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness.    I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:

• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.

• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.

• We ask, on the other hand, whether the contract is constitutive of the transaction.  Is the contract a thing in itself?

• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.

• We can uncover and explain things.  This bespeaks:

      - Casual explanations
      - Algorithmic functions
      - Mathematical models
      - Laws (of nature, not the sovereign)

Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.

And things inhere in the order of nature.    It is the teleology that underlies science.   But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves.  And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world.   This is “hermeneutics.”  I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship.    The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.”  The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself.    We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.

I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”:    it is far more pragmatic than its most strident proponents would let on.    I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific.  Why?    Perhaps because the nature of an antinomy is that it cannot be resolved.

Posted by Jeff Lipshaw on July 30, 2007 at 07:00 AM in Constitutional thoughts, Deliberation and voices, Lipshaw | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The New Formalism Panel:



Judge Posner a "theorist"? Common sense pragmatism a theory? Perhaps what we mean by a "folk theory."

Please correct me if I've misunderstood your point(s) here:

Does not your argument depend upon parties being being quite (unrealistically) ignorant about contract law and contracting in general? Don't they (typically) bring this background knowledge to their "relationship"? There is a some measure of legal determinacy and objectivity inherent or presupposed in "their purposes," is there not? If only for that reason ex post litigation gets off the ground, lends prima facie plausibility to thingness, formalism and purposiveness. It's not so much an antinomy as polarity in dynamic tension (different words for the same phenomena? perhaps.). As Timothy Endicott notes, both Wittgenstein and Hart showed us how "we need agreement in particular judgments that provide standards for criticism and explanation." Another way to put this would be to see things in the manner recently put forth by Robin Bradley Kar, drawing upon the work of Stephen Darwall in a way that overcomes the antinomy of the first and third person standpoints: "Darwall has defined the 'second-person standpoint' as 'the perspective you and I take up when we make and acknowledge claims on one another’s conduct and will,' and I will adopt this definition. He has also argued that we cannot understand the specific authority that obligations purport to have without seeing them as giving some person or group the second-personal standing to demand compliance. When we make such demands, we implicitly presume specific interpersonal authority relations, according to Darwall, and these relations can thus account for both the agent-centered and relational features of obligations in a direct and straightforward manner. [....] In Darwall’s view, when we make demands on one another’s conduct, we are taking up the second-person standpoint, and the legitimacy of our claims will ultimately depend in part on whether they are justifiable to the addressees of our demands. Darwall has argued further that because of facts like these, we are implicitly committed to a contractualist approach to identifying what we owe to one another in these interactions."

Consider, for instance, the following from Dennis Patterson, which illuminates such bakground knowledge and helps account for the fact that hermeneutic interpretation is parasitic on legal practice as such, on the tacit understanding evidenced in "discursive action," and legal praxis:

"We show our understanding of a concept when we use the concept correctly. The giving of a correct explanation is a criterion of understanding. Correct understanding is not a function of something that goes on in our head (e.g., a private act of interpretation or translation). Concept possession is the demonstrated ability to participate in the manifold activities in which the concept is employed (e.g., rule following).

Interpretation is a nonstarter because interpretation draws our attention away from the techniques that make understanding possible. Correct and incorrect forms of action are immanent in practices. Thus, correct forms of action cannot be imposed on a practice, by interpretation or otherwise. It is only when we master the techniques employed by participants in a practice that we can grasp the distinction between correct and incorrect action.

But where does this leave interpretation? If understanding—i.e., knowing how to engage in a practice—is exhibited in action, what role is there for interpretation? Again, Wittgenstein is instructive here. When it comes to interpretation, we can see that interpretation depends upon understanding—i.e., unreflective action—already being in place. We should, as Wittgenstein argues, “restrict the term ‘interpretation’ to the substitution of one expression of the rule for another.” Interpretation is an activity—one that not only depends upon understanding already being in place, but an activity that is actuated by a breakdown or failure in understanding. In short, interpretation is a therapeutic, not foundational, activity.

The nerve of law is argument. Facility in legal argument is the measure of the degree to which one has mastered the grammar of justification that is central to the practice of law. The grammar of legal argument is immanent in the practice of law. By immanent, I mean to say that law is an intersubjective practice wherein participants coordinate their behavior through the employment of a grammar of appraisal that is a constitutive feature of the practice itself.

The fundamental form of expression in law is assertion. Argument in law begins with an assertion that something is the case—true—as a matter of law. Everything from claims that a statute is unconstitutional to averment that a contract is unenforceable are all examples of legal assertions, claims that the purported proposition is true *as a matter of law.*

Lawyers appraise the truth and falsity of legal assertions through forms of legal argument. The forms of argument are themselves neither true nor false. Rather, the forms of legal argument are the means by which lawyers show the truth and falsity of legal propositions. The forms of argument are the grammar of legal argument. They are immanent in the sense that they make possible the assertion of claims for the truth of legal propositions which are then disputed, evaluated, and judged by all who are competent in their use (technique).

There are six forms of legal argument in the American system of law. While some are more familiar than others in different departments of law, these six forms comprise a complete list of the argumentative tools of American law. The forms of argument in law are:

Textual: taking the words of an authoritative legal text (e.g., a constitution, statute, contract or trust) at face value, i.e., in accordance with their ordinary meaning;

Doctrinal: applying rules generated from previously decided cases (precedents);

Historical/Intentional: relying on the intentions of the Framers (constitution), legislature (statute), or parties to an agreement (contract);

Prudential: weighing or assessing the consequences (in terms of “costs”) of a particular rule;

Structural: inferring rules from relationships created by the structures created by the Constitution or statute; and

Ethical: deriving rules from the moral ethos established by the Constitution or by statute.

I have said that the forms of legal argument in the American practice of law are employed to show the truth and falsity of legal propositions. While this is certainly true, I need to say more about the argumentative framework within which the forms of legal argument are immanent. Once this structure is articulated, I can then explicate the nature of understanding in law as a prelude to my discussion of the role of interpretation in law.

As mentioned, legal argument begins in assertion. An assertion in law is a claim that a given proposition is true—that is, true as a matter of law. Consider this proposition: p = “The contract between Smith and Jones is unenforceable.” I will call this proposition a Claim because it is asserted as a correct or true proposition. Before we can assess the truth or falsity of the Claim, we need to know what it is about the contract between Smith and Jones that might lead one to assert that the contract is unenforceable. What we seek is a Ground, a reason (e.g., a fact) that connects the Claim of unenforceability with some aspect or feature of the contract by virtue of which the contract is allegedly unenforceable. Suppose Smith is fourteen years of age. This fact is the Ground for the Claim that the contract is unenforceable. But what is it that makes this so? In other words, in virtue of what are the Claim and Ground joined such that the Ground supports the Claim (i.e., makes it true)?

The answer to this last question is a Warrant. The Warrant makes the Ground significant vis à vis the Claim. The Warrant is the means by which we can say with certainty that the Ground is a legally relevant reason for concluding that the Claim is true as a matter of law. But Warrants are not self executing. For Warrrants to be meaningful, there must be ways of construing Warrants that make Warrants meaningful. I shall refer to these as Backings. The forms of legal argument are the Backings for Warrants, the grammar of legal justification with which we show the truth and falsity of Claims from the legal point of view.

The normativity of law—the distinction between correct and incorrect assertions—is a matter of the proper use of the forms of legal argument. The forms of argument are the (immanent) grammar of legal justification. Understanding in law is best explained as a disposition on the part of individuals to employ the forms of argument in appropriate ways as context requires. The normativity of law assures objectivity in legal judgment. Meaning—the basis of objectivity—is made possible by the harmony in action and judgment of participants in legal practice over time. Most importantly, it is in virtue of what participants in legal practice have *in common* that normativity and objectivity are possible."

Formalism and purposiveness need not be wedded to a scientific understanding of the law or scientific ambition but rather virtues like rational coherence and integrity, praxis and understanding, embedded forms of intentionality prior to the manifest purposes of the parties which are in varying measure congruent with such forms unless the "contract" is determined to be no such thing at all, i.e., not legally enforceable. The articulation of subjective interest in such cases does not make sense without some implicit and prior comprehension of objective norms" the default assumption that there "is a correct answer" serves only as a heuristic device that motivates legal argument wherein we readily grant that some legal rules are vague and many are ambiguous (hence we can make sense of the idea of vague and ambiguous rules). On this account, and after Endicott, vagueness and ambiguity are not necessarily contrary to the rule of law and are certainly features of the law that might be exploited by the parties to an enforceable contract.

As Patterson concludes: "Interpretation is a constitutive feature of legal practice. Notwithstanding its importance within legal practice, interpretation is an activity that is dependent on understanding already being in place. The need for interpretation arises when our conventional ways of understanding break down. This occurs, in law, when our use of the forms of legal argument “is in some way rendered problematic and thrown in doubt.”

How does understanding in law break down, and how does interpretation serve to repair the fabric of understanding? Lawyers use the forms of argument to appraise claims about what is true as a matter of law. In many cases (we may call them easy cases), the relevant forms of argument all point to a single conclusion. But the forms of argument do conflict, and, when they do, the tension must be resolved. Resolving this tension is the activity of legal interpretation.

Law is a practice of argument. In the day-to-day practice of law, legal questions often admit of one right answer. Philosophy clarifies the practice of law when it engenders a clear view of the grammar of legal argument—the techniques employed by lawyers to settle disputed questions within a shared, conventional practice.

The forms of argument are a central feature of the practice of law. But the forms of legal argument do not answer the question of what is to be done when they conflict, thereby engendering the need for interpretation. For this, we need to illuminate how it is that lawyers interpret the law when the forms of argument pull in opposing directions.

The forms of argument are immanent in the practice of law. As we have seen, the same is true of interpretation. The principles of minimal mutilation, coherence and generality are the hermeneutic tools of legal interpretation. In bringing these interpretive principles to light, it has not been my purpose to argue for a particular theory of interpretation. Rather, my aim has been to clarify what we already know and obtain a clearer view of what we do when, perforce, we interpret the law.

Clarity with respect to interpretation in law engenders a deeper understanding of the role of argument in law. Interpretation in law has purpose only because the possibility exists that we can persuade others to embrace our interpretations and that we are, ourselves, likewise capable of being persuaded. Interpretation, while not foundational, is certainly essential; without it, we could not preserve the common fabric of beliefs and dispositions that make law possible."

And, with Endicott, I would add that "The possibility that a rule does not answer a dispute, and that a good interpretation of the law would not make something of the rule that would decide the case, is never a reason for a court to abandon the attempt to give effect to the law, or its responsibility for the wise development of law."

Posted by: Patrick S. O'Donnell | Jul 30, 2007 9:42:07 AM

Post a comment