ABSTRACT
At least in the area of private law, most theoretical arguments in twentieth century American legal scholarship can be traced back in one way or another to the division between Formalists and Realists. Described very broadly, Realists located the essence of private law in the conclusions judges reached in response to the facts of particular cases, while Formalists located private law in a body of relatively determinate rules that judges relied on in in making decisions or announced in their written opinions. Over time, a large number of related theories developed on both sides of the Realist/Formalist divide, but crossovers were rare.
Sherwin, Emily L, System and Tradition (August 23, 2025), Cornell Legal Studies Research Paper Forthcoming.
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