The Law Wants to be Formal

This Article examines the relationship between legal formalism and the institutional significance of different areas of law, arguing that formalism tends to migrate toward the legal domains most central to a system’s self-conception and legitimacy. Through a comparative analysis of English and American law, the Article contends that the two systems, once grounded in a shared tradition of formalist private law, diverged significantly following the influence of legal realism and the rise of the administrative state. In the United States, realism weakened confidence in private law as an autonomous and conceptually coherent body of doctrine, leading courts and scholars to recast contract, tort, equity, and unjust enrichment in more functional and policy-oriented terms. As private law became less central to the legal system, formalist reasoning migrated to areas such as statutory interpretation, constitutional structure, jurisdiction, standing, and procedural doctrine. In England and other Commonwealth jurisdictions, by contrast, realism exerted less influence, allowing private law to remain comparatively formalized and doctrinally central. The Article traces these developments through comparative studies of contract formation, unjust enrichment, constructive trusts, tort duty, statutory interpretation, procedural standing, and governmental liability. It argues that formalism persists because legal systems require a credible distinction between constrained judicial decisionmaking and unconstrained political policymaking. When one area of law is perceived as too open-ended or policy driven to sustain that distinction, formalist analysis relocates to other legal fields capable of performing that legitimating function. The Article concludes that legal realism did not eliminate formalism from American law but instead shifted its center of gravity from private law to the doctrines governing legislative interpretation, judicial power, and procedural administration, while English law largely retained private law as the principal site of formal legal reasoning.[This abstract was written by Microsoft Copilot, a generative artificial intelligence.]