French judicial discourse, American judicial tests, Roman Jakobson, Roland Barthes, Paul de Man, Literary theory
Comparative and Foreign Law | Jurisprudence | Legal History
The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce judicial decisions. He argues that both American and French judicial decisions construct and use the dichotomy in order to make similar ontological claims about the nature of adjudication—namely, that adjudication is both inherently stable and socially responsive.
Lasser, Mitchel de S.-O.-l'E., ""Lit. Theory" Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse" (1998). Cornell Law Faculty Publications. Paper 745.
Published in: Harvard Law Review, vol. 111, no. 3 (January 1998).