Twenty-First Century Formalism

Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, formalism has simply become an epithet used to describe virtually anything they dislike in legal thinking. Used often and inconsistently as a stand-in (and frequently a strawman), formalism’s distinct identity has been lost, its meaning merged with whatever methodology it is being used to support or attack. This Article seeks to separate formalism from those debates, identifying formalism for what it is: a commitment to form in legal thinking. Form is critical to understanding law; because law is a shared enterprise, it can only be understood and applied as it exists in some form. Formalism recognizes the form-bound nature of law and expands on that recognition by engaging with law in its various forms rather than as an abstraction. The Article makes three main contributions to understanding formalism: First, it provides a modern definition of formalism, separating it from confusion over formalism caused by its invocation in a series of debates over law in the twentieth century. Second, it describes how formalism operates in methodologies and contexts beyond textualism and originalism, the two methodologies with which formalism is usually identified. Third, it explores the power of formalism beyond its value in determining the content of law. The form of law is what drives the various ways the law categorizes conduct, and law’s categories in turn give meaning to conduct beyond just the application of enforceable legal constraints. It is time for us to bring formalism into the twenty-first century and recognize it for its distinct role in understanding law and legal institutions

Speech and Institutional Choice

Even if an authoritarian state cannot successfully control all of the conduits by which information crosses its borders, successfully targeting a few of the largest ones is likely to bring enough of a return to justify the effort, a point at the heart of John Palfrey and Robert Rogoyski’s Essay for this conference. What is true of states and regulation for political gain will be true of private interests and regulation for financial gain. Control over the means of creating and sharing the digital content would provide any firm substantial rents, either in the form of higher prices or by favoring its own content or associated technologies. The pervasive presence of network effects—both actual and virtual—in digital technology markets suggests that such private actors are likely to enjoy considerable regulatory control over particular technologies once dominated, and there is every reason to believe that such control, once vested, will be employed to the benefit of those who hold control and to the detriment (or, at the very best, indifference) of those who do not. The likely result is both wealth transfer to those who control particular digital technologies and, as a consequence of their vested interest in maintaining that control, the retardation of future technological development

Algorithmic Fairness, Algorithmic Discrimination

There has been an explosion of concern about the use of computers to make decisions affecting humans, from hiring to lending approvals to setting prison terms. Many have pointed out that using computer programs to make these decisions may result in the propagation of biases or otherwise lead to undesirable outcomes. Many have called for increased transparency and others have called for algorithms to be tuned to produce more racially balanced outcomes. Attention to the problem is likely to grow as computers make increasingly important and sophisticated decisions in our daily lives. Drawing on both the computer science and legal literature on algorithmic fairness, this paper makes four major contributions to the debate over algorithmic discrimination. First, it provides a legal response to a recent flurry of work in computer science seeking to incorporate fairness in algorithmic decision-makers by demonstrating that legal rules generally apply in the form of side constraints, not fairness functions that can be optimized. Second, by looking at the problem through the lens of discrimination law, the paper recognizes that the problems posed by computational decisionmakers closely resemble the historical, institutional discrimination that discrimination law has evolved to control, a response to the claim that this problem is truly novel because it involves computerized decision-making. Third, the paper responds to calls for transparency in computational decision-making by demonstrating how transparency is unnecessary to providing accountability and that discrimination law itself provides a model for how to deal with cases of unfair algorithmic discrimination, with or without transparency. Fourth, the paper addresses a problem that has divided the literature on the topic: how to correct for discriminatory results produced by algorithms. Rather than seeing the problem as a binary one, I offer a third way, one that disaggregates the process of correcting algorithmic decision-makers into two separate decisions: a decision to reject an old process and a separate decision to adopt a new one. Those two decisions are subject to different legal requirements, providing added flexibility to firms and agencies seeking to avoid the worst kinds of discriminatory outcomes. Examples of disparate outcomes generated by algorithms combined with the novelty of computational decision-making are prompting many to push for new regulations to require algorithmic fairness. But, in the end, current discrimination law provides most of the answers for the wide variety of fairness-related claims likely to arise in the context of computational decision-makers, regardless of the specific technology underlying them

Less Restrictive Alternatives and the Ancillary Restraints Doctrine

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects. American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s Alston v. NCAA, the Supreme Court applied the test to strike several NCAA compensation restrictions, but it did so without explaining how the test might fit into the rule of reason or providing any single statement of the rule of reason. Rather than explicitly adopting the less restrictive alternatives test as a necessary part of the rule of reason, the Court merely noted that it has “sometimes spoken of” a three-step framework that includes the less restrictive alternatives test, suggesting that the test might or might not apply in any particular rule of reason case. The Supreme Court has discussed alternatives in antitrust cases, though, and many find in those cases a distinct less restrictive alternatives test. Careful analysis of the cases shows that prior to Alston, the Court has not used anything like a less restrictive alternatives test. Nor should it. A less restrictive alternatives test injects tremendous uncertainty into the rule of reason while doing little to reduce the problems inherent in the kind of balancing the rule of reason requires. The Court’s willingness to accept the less restrictive alternatives test in Alston without accounting for the ramifications of the test is likely to increase confusion in antitrust cases as litigants struggle not only with the inherent indeterminacy of the less restrictive alternatives test itself but also with the question of whether the less restrictive alternatives test is even relevant to their particular case. This Article traces the development of the less restrictive alternatives test in antitrust scholarship and commentary and evaluates how consideration of alternatives actually does, and should, inform antitrust analysis. The scholarly impulse to include a less restrictive alternatives test in the rule of reason actually highlights the need for a reinvigorated approach to another aspect of antitrust law: the ancillary restraints doctrine. Properly applied, the ancillary restraints doctrine responds to the concerns that motivate the less restrictive alternatives test, but less restrictive alternatives are of limited use even in that inquiry

Rational basis "plus"

1 online resource (PDF, pages 449-477