The New Formalism in Contract

Over the past century, contract and commercial law have been prime sites for the debate about formalism in law. This paper emphasizes 3 points: 1. A crucial defect of Llewellyn's antiformalist program lay in his failure to anticipate or appreciate the formalism of private enforcement systems: the rulemaking and adjudication of trade associations. 2. This trade association formalism does not counsel formalism in commercial law generally; rather, it reflects, and takes advantage of, the idiosyncratic institutional structures of the associations themselves. 3. These institutional structures did not emerge or thrive because of efficiency advantages alone; they may have received powerful impetus from a drive towards power by some traders and their managers, and from changes in the dominant social conception of appropriate economic organization.