Justice Peckham's formalism was the formalism of disingenuousness and fully entitled to the stigma it has attracted. When we look at another conception of formalism, however, the formalism of Justice Thurgood Marshall in United States v. Locke, for example, it is not so clear that formalism deserves to be treated as a vice at all. It is, to be sure, formalistic to take the literal meaning of the words "prior to December 31" in United States v. Locke as dictating a result other than what seems to be the most sensible one, because it is to treat the form of a legal rule as more important than its deeper purpose, or more important than reaching the best all-things-considered judgment in the particular context of a particular case. But although Locke is from this perspective formalistic, it is also formalistic in just the same way to use the 55-mile-per-hour speed limit to penalize the driver who is driving safely at 70, to penalize the short-swing trader who in fact has no inside information, to allow those with twenty-one-dollar claims to demand a jury trial, and to prohibit otherwise qualified thirty-four-year-olds from becoming president. In all of these cases, law operates formally in treating the meaning of the words of a rule as more important than achieving the law's deeper purpose and reaching the ideal result in this particular case. Formalist this may be, but formalism is, as these and countless other examples demonstrate, a central feature of what makes law distinctive.

Unknown, Frederick Schauer - Thinkin…, loc. 54