This chapter offers a brief overview of the basic thesis of the book – that we are currently in a period of widely understood instrumentalism with respect to the creation of common law by appellate courts in the United States. This modern era follows, almost by default, a long and traditional period of formalism, during which it was presumed that the nature of common law creation by appellate courts was fundamentally logical, objective, and mechanistic in nature. Belief in this understanding of appellate court lawmaking was discredited by the legal realist movement, which began in the first third of the twentieth century, and left a void that was filled by instrumentalism.

The current era of common law lawmaking is characterized by a conceptually incoherent and frequently inconsistent amalgam of formalist and instrumentalist elements. This has resulted in practice by, and before, appellate courts in the United States that is often opaque and confusing.

Starting in the 1920s, the traditional conception of what appellate judges were actually doing when they made common law became the subject of sustained critique. Often collectively labeled as the Legal Realists, or the Legal Realist Movement, those advancing this critique aggressively challenged the formalist claim that the lawmaking work of appellate judges was fundamentally an objective, value-neutral, and preference-free enterprise that relied heavily upon formal deductive logic to select among possible versions of legal doctrine.

Instead, the legal realists argued that no matter how much appellate court opinions presented in realist terms the ultimate choices being made, those choices were nearly always the product of the judges’ reliance upon personal social judgments and preferences. They asserted that there was, in fact, little objective, detached, or scientific in these judges’ decisions to make one or another possible version of legal doctrine the binding and authoritative law of the jurisdiction.

During the middle period of the twentieth century, the legal realist critique of traditional formalism came to enjoy a consensus among the professional and academic legal community. Little sincere belief in the formalist paradigm remained by the last half of the twentieth century.

This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.

This chapter concludes that the individual is considered in the legal reasoning of the Court in the identified contexts to a minor extent and offers reflections on the reasons for this. It recapitulates reflections on formalism and stability that are key in maritime and territorial boundary disputes. It notes that the Court is correctly limited to the request of the parties and cannot innovate beyond their submissions. However, across all chapters it was observed that state litigants often raise concerns about individuals in their custody. It therefore challenges the Court’s judicial caution when faced with potentially developing international law in addressing state’s concerns. It argues that while the Court does not have a formal law-making function, it develops international law nonetheless through its interpretations and clarifications and should not hesitate to do so when clarification is sought by state litigants on matters relating to the affected individuals in such disputes.

From the three-fifths clause and the Mason-Dixon Line to the doctrines of mixed character and separate-but-equal, the legal apparatus of slavery and anti-Black racism in the United States is infamous for its coldly formalist logic. Indeed, the formalism of the first civil rights movement has been obscured by a tendency to ascribe this approach exclusively to its political opponents. This chapter draws on recent reassessments of form in legal and literary studies to illuminate the Black formalist tradition of the long nineteenth century. In particular, I examine how authors (David Walker, Frederick Douglass, and Charles Chesnutt) and litigants (Harriet and Dred Scott) wielded the ancient legal-cultural form of the person to detach certain classes of person (slave, freeman, sailor, citizen, wife, mother, daughter) from racialized human groups (“colored,” white). By contrast, I demonstrate, white supremacists such as Thomas Jefferson and Chief Justice Roger B. Taney sought to naturalize, humanize, and racialize the persons known as “slave” and “citizen.” As the Thirteenth and Fourteenth Amendments attest, early civil rights activists transformed legal personhood in the United States by insisting on the abolition of one class of person (slave) and the reconstitution of another (citizen).

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.

Via an analysis of H. G. Wells’s Tono-Bungay, this chapter explores how novels adapted to accommodate the metropolitan spaces of London, and it argues that Wells’s novel links the financialization of the British economy and the cultural turn toward London to the emergence of a new novelistic poetics and to the development of a new novelistic character. Tono-Bungay narrates the rise and fall of Teddy Ponderevo’s financial empire, but the source of drama in the novel is more often the narrator’s inability to reconcile classical novelistic poetics with the logic of value production under finance capitalism and with his experiences in London. The narrator longs for a new mode of representation that can account for the largely imaginary and highly volatile value produced by the financial empire, and he finds inspiration for that new mode of representation in the urban spaces of London.

This chapter provides an overview of twentieth- and twenty-first-century explorations of poetic form, with a focus on late Imperial and early Soviet Modernism. Rebelling against nineteenth-century norms, Modernist poets sought to devise a poetic idiom more in tune with their era of rapid cultural, political, and technological change. The rich and diverse poetic output of this period did not simply reject the limits imposed by formal convention. Rather, it expanded them, experimenting with metrical forms as well as the visual and sonic shape of the poem to uncover the particular qualities of poetic language. The chapter also considers the effect of shifting social circumstances on poetry, and particularly the new forms it took as it addressed mass audiences. The final part of the chapter traces the resonance of Modernist experiments in later Soviet poetry and the continued importance attached to form in the work of contemporary poets.

Eduard Hanslick’s On the Musically Beautiful (1854) constitutes the nemesis of the sentimental-Romantic ‘aesthetics of feeling’. It did not however completely expel emotion from music, as some thought, but from music aesthetics, framed as a new ‘science’ equally removed from historical and political context. This position differed radically from the Left Hegelian politics and Romantic aesthetics Hanslick had espoused a few years earlier. His change of heart was prompted by the revolution of 1848 and the subsequent growth of ‘Herbartianism’, an Austrian ‘state philosophy’ synthesized from the anti-Idealist thinkers J. F. Herbart and Bernard Bolzano. Hanslick’s own Herbartian programme had a direct impact on the Viennese tradition of musicology, and a more indirect influence over late Romantic thought on music, pushing toward a more analytical, ‘objective’ concept of music’s dynamic processes. By World War I, ‘energetic’ aesthetics had replaced Romantic emotions with an unsentimental vocabulary of forms, lines and energy-flows.

This chapter adopts techniques from historical poetics to understand the queerness of American poetry before 1850. It suggests a set of techniques and methods as descriptive of queer historical poetics. It places poetry in its historical context to determine how queerness has changed across early American history. By examining poetry from Puritan New England, eighteenth-century American satires, verse of the American Revolution, and poetic collaborations from the early Republic, this chapter shows how poetry was understood to be queer in colonial American and the early republic. It suggests a relationship between queerness and formalism that looks for the ways queer sociabilities and ordinary queerness appeared in traditions of American poetry, and how these forms might challenge our idea of queer poetry as always intent on being radical, deviant, or innovative. Queer historical poetics restores sexuality to discussions of the formalist and poetic traditions of American poetry before 1850 while borrowing from queer studies the demand for relevancy.

This chapter explores Wittgenstein’s two references to the arts in 4.014. The first is his musical example of the unity of language and the world; the second his allusion to the fairytale The Gold-Children by Brothers Grimm. The chapter argues, first, that Wittgenstein’s early notion of logic incorporates forms that for Kant belong to transcendental aesthetic, namely, space and time. Second, it spells out how this commitment motivates Wittgenstein’s musical example and why it is crucial to draw a distinction between transcendental form and empirical structures made possible by that form. Finally, the chapter argues, pace Peter Sullivan, that the unity of language and the world is guaranteed by the metaphysical subject as their common origin. If the fairytale is read as a condensed illustration of Wittgenstein’s position, then this common origin is signified by a golden fish.

The final chapter considers how Ilf and Petrov responded to the cultural crackdown, show trials, and purges that confronted them when they returned to the Soviet Union. In the travelogue’s penultimate chapter, “Anxious Life,” the anxiety that the writers attributed to capitalism provided an ambivalent and ironic framework for their explicit and implicit comparisons. Emphasizing the “anxiety” caused by the Stalinist purges, the chapter considers a range of possible readings of Ilf and Petrov’s claim that Soviet people were calmer and happier than Americans. The chapter concludes with an analysis of American and Soviet reviewers’ varied responses to the travelogue and asks: To what extent did Ilf and Petrov’s epic American road trip confirm their presuppositions? Did it allow them to glimpse the United States, the Soviet Union, and perhaps themselves anew?

This chapter takes stock of the various definitions and valuations the essay has accrued over the course of the history of American literary theory and criticism. Starting with the historical-materialist criticism of the Great Depression era and moving on to the New Criticism of the 1940s and ’50s, then delving into the myriad structuralisms and poststructuralisms of the Cold War and postcommunist eras, before concluding with contemporary critical trends, it tracks the discipline’s trajectory in the American context, all the while zeroing in on the essay’s shifting position therein. The chapter throws into relief the fundamental dialectic between hermetic formalism and committed social criticism that has shaped literary studies in the United States since its rise early in the twentieth century and teases out the way this perennial vacillation has rendered more or less appealing, and more or less useful, the essay as a form and object of analysis.

Chapter 11 turns to a discussion of the competing arguments concerning the new public nuisance law advanced by practicing attorneys, interest group allies, judges, scholars, and law-and-economics professors. Almost all criticisms of the new public nuisance law have been negative, characterizing expansion of public nuisance law as illegitimate and dysfunctional. These critiques are examined through the lens of various categories of criticism: (1) traditional, (2) formal, (3) institutional, (4) rule of law, (5) democratic theory, and (5) law and economics. The critics all draw on negative examples from the mass tort public nuisance cases in the 21st century (lead paint, firearms, opioids, vaping, climate change). At least one commentator, however, has offered tempered praise for the new public nuisance law as the second best solution to community-wide harms. She believes that the development of the new public nuisance law is in the finest traditon of a flexible, developing common law to meet changed circumsatnces. This commentator would permit continued development of the new public nuisance law, enhanced with several guardrails and transparency in proceedings.

This chapter explores Claudia Jones’s poetics of carcerality and politics of Black internationalism, linking conventions of poetic form to an ever-growing collective of revolutionary women. Jones’s poetry proposes a remapping of diaspora as a circuit of solidarity between women workers and revolutionaries that stretches from Puerto Rico to West Virginia to China and Russia. The extensive corpus of writing about Jones has yet to focus its attention on her poetic devices, and in particular her crafting of rhyme, syntax, and stanza structure. This chapter thinks through some of the ways that poetic tropes and schemes not only emerge from and reflect conditions that might be called diasporic, but also present unique visions of south–south movement and radical responses in their own right. Jones’s poetry challenges transhistorical claims about what poetry is, claims that have sometimes been produced through classroom-based pedagogies and genealogies.

This chapter explores the slow and uneven property reform path ushered in by the short-lived liberal reformers that gathered around Baron von Stein. After Stein’s resignation, the discourse of property modernization was shortlived and the reconcpetualization of property was carried on by two leading,moderately conservative Roman law scholars who had been close to Stein’s cicle: Barthold Georg Niehbur and Friedrich Karl von Savigny. Animated by sincere scholarly devotion, and yet not shy to use Roman law and agrarian history to support their political agenda, Neihbur built a powerful narrative equating the liberation of the German peasantry to the struggle of the dispossessed Roman free peasant. Simultaneously, Savigny outlined a new Romanist architecture for the law of property designed to enable and protect the full mastery of the owner’s will over a physical thing.

Chapter 6 shows how Cicero establishes a normative framework for the writing of literary history. Across the dialogue and through the various speakers he offers a sustained critique of literary historiography. Several fundamental tensions and conflicts emerge: absolute versus relative criteria in assessing literature and building canons; presentism and antiquarianism; formalism and historicism; and the recognition that all literary histories are subject to their crafters’ emphases and agendas.