The Morality of Formalism

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UCLA Law Review


doctrinal formalism, values formalism, bright lines, balancing tests, Richard Posner, Grant Gilmore


Although this Article will discuss “value formalism,” it first will consider several recent legal/academic criticisms of “formalism.” These criticisms focus upon decisions creating fixed rules based upon a limited set of facts which, in turn, may have been formalistically derived from the rules of evidence. Some of the critics have argued that such formalism at the rule-making level, which I will label “doctrinal formalism,” is inherently suspect or wrong. This Article's thesis is that “doctrinal formalism” is frequently desirable at the stage of adjudication and rulemaking, both for instrumental reasons and to implement moral values which are not necessarily instrumental. As we shall see, this limited definition, equating “doctrinal formalism” with rules, eliminates many of the offensive characteristics normally associated with formalism.


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