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date: 19 September 2018

Abstract and Keywords

Formalism is a style of adjudication and an approach to constitutional interpretation that is often caricatured but rarely described, let alone defended. For years, the most common target for accusations of formalism has been the Supreme Court's 1905 decision in Lochner v. New York, and a close look at this case may help us to understand formalism at its worst. It may be that the epithetical use of the word “formalism” is much more about candor and deception and facing up to judicial choice and legal variability and indeterminacy than it is about adherence to prescribed forms. When the expected consequences of the errors of mistakenly disabling wise decision makers from reaching wise decisions, in constitutional law and elsewhere, are greater than the expected errors of mistakenly enabling unwise decision makers from reaching unwise decisions, then many of the arguments for a formal approach to adjudication and judicial decision making will and should be unavailing.

Keywords: Supreme Court, formalism, adjudication, constitutional interpretation, judicial choice, constitutional law, judicial decision making

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