The Ascendancy of Legal Formalism

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The Ascendancy of Legal Formalism


Law and Politics. Beginning around midcentury, a fundamental transformation in legal thinking responded to growing charges that the judicial process was merely a disguised, undemocratic form of political decision making. This criticism of American law had gained strength for several reasons. Jacksonian Democrats identified the law as a bastion of elitism that stood in the way of government by the people. The shift from appointment to election as the dominant method for choosing state judges reflected the belief that voters could adequately understand legal issues and should be able to control the bench. After 1846 every new state provided for election of at least part of the judiciary; the supreme courts of Michigan and Pennsylvania became elective bodies in 1850. Moreover, the long period of economic stagnation following the Panic of 1837 led to widespread dissatisfaction with the strategies used to foster development, including the candid formulation of economic policies by the courts. Finally, the acknowledgment of sharpening class divisions during this economic downturn prompted the beneficiaries of open-ended judicial powers to foresee that future courts might use the same policy-making flexibility to approve redistributions of wealth in favor of the disadvantaged. These pressures shaped new assertions of the old idea that the legal decision-making process was a neutral, objective activity unlike the political contest of interests and subjective values.

Formalism. The most powerful response to these challenges is known as legal formalism because it maintained that judicial decisions should be based on abstract, general rules rather than explicit policy considerations or an evaluation of fairness in individual cases. By emphasizing what it was not, formalism identified two important areas of institutional conflict for a judiciary struggling to consolidate the power that it had successfully claimed in the first half of the century. First, formalism underscored that courts were not legislatures. To the contrary, courts increasingly cast themselves in opposition to legislatures as defenders of timeless values and exercised the authority to declare statutes unconstitutional. Second, legal formalism reinforced the distinction between judge and jury. Fundamental inquiriessuch as the question whether two parties had formed a legally

binding contractcame to be regarded as issues of law to be decided by a judge rather than issues of fact to be decided by a jury. The new legal reasoning may be traced through the four areas that the most influential advocate of formalism, Christopher Columbus Langdell of Harvard Law School, would identify as the major fields of civil law: property, contracts, torts, and civil procedure.

Property. The changing law of eminent domainthat is, the power of a government to take private

property for a public purpose, provided that the property owner is compensatedmost clearly illustrated the nature of formalism and the social changes underlying the shift in ideas about law. Vigorous use of eminent domain played an important role in economic development, as the national and state governments exercised the power to make possible the construction of turnpikes, canals, and, later, railroads. One especially important variation of the principle, so-called milldam acts, involved the flooding of lands that resulted from damming streams to generate power. In effect, this practice subsidized the transfer of land from agricultural to manufacturing uses. Although the milldam acts greatly benefited entrepreneurs at the expense of farmers, the courts held that the resulting expansion of the economy was a public purpose that justified the use of eminent domain powers. By midcentury, however, state courts retreated from this policy-based approach in an effort to rein in the applications of eminent domain. Chief Justice Lemuel Shaw of the Massachusetts Supreme Court, who had relied on economic considerations in extending the milldam principle from gristmills to manufacturing corporations, came to argue that the milldam acts reflected unique principles of water law and that the promotion of economic development was not a public purpose that would justify use of eminent domain powers in other contexts. The Supreme Court of Wisconsin similarly ruled in 1860 that precedent alone justified the redistribution of resources to benefit mills. Although eminent domain remained essential to the construction of railroads, exercise of state power was no longer based on the stimulation of economic growth; instead, courts looked to the publics right of access to railroads as the purpose that justified the taking of private property.

Contracts. Decisions in the decades prior to midcentury had established that a contract was a meeting of the minds enforceable through the judicial process. As the great jurist James Kent explained in 1832, the plain intent of the parties was more important in interpreting the agreement than the strict letter of the contract. Beginning with Theophilus Parsonss Law of Contracts (18531855), however, the law placed less emphasis on the subjective will of the contracting parties. Instead, Parsons maintained that a court should only bring interpretation of a contract as close to the parties actual meaning as the words they saw fit to employ, when properly construed, and the rules of law, will permit. This so-called objective theory aptly fit the mature economy in which contracts often involved depersonalized exchanges that depended on uniformity and predictability in the governing rules of law. The objective theory of contract made it logical to read business customs and other standard practices into a contract to give meaning to commercial transactions. Like the meeting of the minds principle championed by Kent, the formalist approach to contract law did not call for courts to inquire

whether a particular deal was fair, although the customs and standard practices applied by the courts offered some new protections for parties. The traditional rule of caveat emptorlet the buyer bewareslowly began to erode as courts concluded that sales contracts implicitly promised that goods met certain standards. For example, as goods increasingly came to be sold on the basis of samples, courts read into contracts a promise (or warranty) that all of the goods sold matched the samples. This sort of warranty reflected the goal of contract law to facilitate efficient transactions among merchants.

Torts. As in the decades before 1850, courts hesitated to require industry to pay for all of the damages that it caused to people and property. The New York Court of Appeals expressed this reluctance with unusual bluntness in Ryan v. New York Central Railroad (1866) in ruling that a railroad which had negligently caused a fire owed damages only to the homeowner adjacent to the track and not to the individuals whose homes were destroyed when the fire spread. The court concluded that in a commercial country, each man, to some extent, runs the hazard of his neighbors conduct, and each, by insurance against such hazards, is enabled to obtain a reasonable security against loss. More often courts adopted rules based less explicitly on policy-based allocations of the risks and costs of development. One important example was the principle of contributory negligence. Under this doctrine, an injured person who had failed to exercise reasonable care for his safety could not recover damages, even if most of the fault for the accident was attributable to the defendant. For example, contributory negligence often prevented juries from deciding whether to award damages to a person injured while crossing railroad tracks on a clear day, even if the train was speeding and failed to signal its approach into a populated area. Although this rule obviously subsidized railroads, courts defended it as an effort to maintain neutrality in the judicial process. In certain controversies between the weak and strong, one judge explained, juries tended to be moved by a compassion which, however honorable to them as philanthropists, is wholly inconsistent with the principles of law and justice.

Civil Procedure. Jacksonian Democrats argued that ordinary people were denied access to the courts by arcane methods for filing suits and pursuing claims. The laws were in closed books, declared attorney David Dudley Field, and the lawyers object to the opening of these books. The movement for simplification of procedures reached a milestone in 1848 when New York adopted the Field Code, named after its chief proponent. The Field Code and a variety of modified versions and alternative codes were adopted through much of the country over the next half century. The new states of the West proved especially receptive, and California adopted a code in 1872. These codes sought to eliminate the highly convoluted system of custom and precedent that had evolved in Anglo-American courts. The Field Code, however, was not always accessible to nonlawyers, and it became less so through this period. In 1849 it included 473 sections; by 1880 the New York codes for civil and criminal procedure included 3,356 sections. To Field and his allies the central aim of the reform was to rationalize procedure. Like traditional procedures, his code would be developed by experts, but the neutral and democratic character of the law would now be guaranteed by the order and logic of its forms.


Lawrence M. Friedman, A History of American Law, second edition (New York: Simon & Schuster, 1985);

Morton J. Horwitz, The Transformation of American Law, 17801860 (Cambridge, Mass.: Harvard University Press, 1977).

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The Ascendancy of Legal Formalism

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