Bagchi on the Politics of Legal Formalism

Aditi Bagchi (Fordham University School of Law) has posted The Contingent Politics of Legal Formalism (eds. Balganesh, Sichelman & Smith, The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Cambridge University Press, 2018)) on SSRN.  Here is the abstract: This essay is for an edited volume exploring Wesley Hohfeld’s contributions to legal theory. It argues that Hohfeld’s scheme has latent political implications that render the scheme less than hospitable to a more egalitarian private law structure. Even as Hohfeld deconstructs some analytic choices and reveals their contingency, he reifies other choices that are equally contingent. The broader point is that such simultaneous deconstruction-reification is unavoidable.The essay identifies three features of the Hohfeldian scheme that undermine the intelligibility, and even more so the plausibility, of alternative private law orders. Each stems from…

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