We’ll have our first meeting of the semester this Thursday, February 19 at 7, in Hauser 101. We’ll discuss Duncan Kennedy’s “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685 (1976), which can be found in the Fisher and Kennedy volume or at Duncan’s Website.
We can also chat briefly about finding some professors or students who wish to give talks this semester.
1 response so far ↓
Eric Engle // Feb 19th 2009 at 8:50 am
“Form and Substance” can be seen as what Kennedy and other crits argue as a ‘false dichotomy’ of formalism, and should be looked at and compared with the article ‘the decline of the public/private distinction’ which is also regarded as canonical for contemporary U.S. legal thought.
The article can be shortcutted as “‘rules’ versus ‘standards'” i.e. formalism versus realism; essentially the paper attempts (I think succeeds) to show the manipulability of formal rules, how formal rules can be recast to attain either outcome in a case and that thus one must look beyond form to substance. The argument seems to go over the heads of Federalist society libertarians, that supposedly neutral principles aren’t neutral at all. I’m not sure why, they seem intellectually honest, though at times naive but well meaning people. Anyway, if formal rules are manipulable and can be used to attain whatever the courts want we should look to the substantive outcome And, surprise, the substantive outcomes the court reaches are those that favor capitalism, i.e. rich white males. The article is interesting also as a study for how much one can or cannot say overtly. I don’t believe he comes right out and says “these formally manipulable outcomes consistently favor the rich and disfavor the poor” let alone “the rules favor white men in suits” though I’m sure that is at least in there implicitly.
Usually arguments that the law is formally manipulable and the manipulations systematically favor the rich go right over the heads of conservatives and libertarians. They think neutral principles and unbiased outcome-blind judging is possible. I am not sure about that.In any event, the article has implications for contemporary arguments.