Most academic criticism has concentrated on neoformalist rules about the content of contractual obligation in the application of such doctrines as the parol evidence rule, the obligation of good faith, and the effects of trade usage. This Article examines the phenomenon as it arises in the creation of contract obligation, an area in which the virtues of formalism are arguably more important.' The developing law of promissory estoppel does indeed appear to display a trend away from reliance protection in the commercial world.' Many of these decisions may fairly be characterized as "formalist" insofar as they privilege textual forms (written contracts) over other contextual features. This Article argues, however, that this trend is more accurately characterized as a realist effort than a formalist or conceptualist one. While the label applied to the practice may appear to be unimportant, the term "formalism" tends both to obscure the policy-oriented way in which courts have manipulated legal doctrine and to minimize the role of private enterprise in the development of rules that privilege textual forms.
Sidney W. Delong,
Placid, Clear-Seeming Words: Some Realism About the New Formalism (with Particular Reference to Promissory Estoppel),
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol38/iss1/3