Dimensions of Formalism in Legal Interpretation
This paper’s thesis is simple: the aims of formalism in legal interpretation can run at cross-purposes. Legal formalism, as I am using the term here, means constraining an interpreter’s first-order judgments or discretion. One way that interpreters can submit their judgment is by identifying and following a norm laid down by a prior legal authority. We can call this the formalism of authority. Another way is choosing an interpretive method that is easy to use and minimizes discretionary judgments. We can call this the formalism of method. Those inclined toward interpretive formalism, this author included, often assume that authoritative-formalism and method-formalism go hand in hand. In fact, a purported feature of interpretive formalism is that it can advance the rule of law and judicial impersonality by advancing both kinds of formality at the same time.
Often it can, but sometimes it cannot. In fact, these goals can run at cross purposes, not just with respect to particular interpretive questions, but at the level of more general method. The basic insight is this: a careful search for an authoritative source is not susceptible to a mechanical method, and simplicity of method can purchase certainty at the cost of drift from authoritative norms. Careful commentators on legal formalism have touched on this tension. Nevertheless, I am not aware of work that takes a systematic analysis of this phenomenon, traces it through intra-formalist interpretive debates, and considers the competing jurisprudential and moral visions beneath the competing dimensions of legal formality.
This should interest interpretive formalists and non-formalists alike. As interpretive formalism is on the rise in United States courts, this intra-formalist tension has come to the fore. With originalists plumbing the depths of legal history to mine the Constitution’s legal meaning or looking to the content of unwritten general law to understand the legal backdrops of its enacted provisions, critics pointedly observe that this is not the simple, predictable method of restraining judges that we were promised. Similarly, textualists argue amongst themselves in cases like Bostock about how much context to allow into original public meaning: Justice Gorsuch accuses his context-friendly dissenters of purposivism, whereas the latter object that his more-algorithmic method is statutory updating on the sly. Seeing these contretemps as conflicts between the formalism of authority and method can help us understand the shape and the stakes of these disagreements. The standard contrasts between “form and substance,” or “form and function,” or “letter and spirit” miss important parts of the picture. There are different substantive visions competing within the confines of form. The goals of one vision—method formalism—seems far more functional than its rival, whose spirit is less likely to limit itself to the letter alone.
About the Public Law Workshop
Michigan’s Public Law Workshop provides an opportunity for faculty and students from across the University to enjoy weekly presentations by leading scholars producing current work on topics ranging from constitutional law and administrative law to international law, statutory interpretation and beyond. Professors Julian Mortenson and Daniel Deacon organize the workshop. If you would like to receive workshop announcements, please contact Alex Wroble ([email protected]) and ask to have your name added to the workshop’s email list.