Academic

Download of the Week

By Lawrence Solum

The Download of the Week is Relational Formalism, Linguistic Theory and Legal Construction by Jonathan Yovel. Here is the abstract:

Legal formalism and legal relationalism are traditionally thought of as defining opposite poles of jurisprudential analysis. This study develops the notion of ?relational formalism? as it emerges from practices of commercial law and from linguistic theory. As an interpretation of practice, relational formalism?although maintaining the precedence of formalist construction over functional analysis?does so while responding to practical concerns and interests entailed by relations. It argues that legal formalism needs not be an expression of positivistic commitments, and can be approached on relational grounds, and must respond to those. The study empirically analyzes a well-known problem of negotiable instruments to support both the tenability of relational formalism and its theoretical and practical fruitfulness. It then uses performative linguistics to sustain a relational construction of formalism. Finally, it claims that tacit judicial divergence over formalism, rather than doctrinal differences, sometimes explains conflicting outcomes in similar cases.

Sophisticated and deeply interesting. Highly recommended. Download it while its hot!

Full post as published by Legal Theory Blog on April 10, 2010 (boomark / email).