Two Functions of Formalism: In Memory of Guido Tedeschi

Abstract

Some thirty years ago, I gave a lecture on the Italian legal system. It was meant to be an informal explanation, to an American—primarily university—audience, of some aspects of Italian jurisprudence that might seem puzzling to those accustomed to U.S. views of law. In a recent article, Professor Cass Sunstein referred to my unpublished talk, and the editors of The University of Chicago Law Review asked me to send them a copy for citechecking purposes. After reading the essay they decided that it was worth publishing and urged me to let them do so. I agreed. To be told that an after-dinner chat still had some interest for readers thirty years later was flattery that I could not resist. For a while I thought about rewriting and updating the essay—there are, after all, many things that have happened in both American and Italian law since I gave the talk that are relevant to it. To what degree has the movement toward express functionalism advanced in Italy? What is the significance of the abject failure in American capital cases of the attempt to impose a modicum of order in sentencing? Has our legal system been materially altered in relevant ways by the establishment of federal sentencing guidelines? To what extent has the influence of Justice Antonin Scalia's jurisprudence moved us closer to a "gold standard" view of law? One could give sound-bite answers to each of these: "to a fair degree"; "a predictable return to jury aresponsibility"; "less than one might think", and "some, but not as much as he hopes." Such replies would, however, be woefully inadequate. And to treat properly these, not to mention a multitude of other possible, updating questions would require a full-length article apiece. So I decided to let the essay stand unchanged—as a somewhat dated, but perhaps still relevant, rumination about law and formalism