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A Comment on Duncan Kennedys Article: Form and Substance in Private Law Adjudication Found At 89 Harvard Law Review 1685

(1976) By Anthony J. Fejfar, B.A., J.D., M.B.A., Phd., Coif Member United States Supreme Court Bar (C)Copyright (2012 C.E.) By Anthony J. Fejfar and Neothomism, P.C. (PA) In the Duncan Kennedy article, Form and Substance in Private Law Adjudication, Duncan Kennedy does not do an adequate job in discussing the concepts of Form and Substance. Form is defined as a metaphysical concept which relates to shape. For example, in mathematics, there are forms such as a triangle, square, rectangle, line, and circle. In linguistics, every word is a form, and each word carries with it a formal definition. Thus, the word, brick, for example, has a definition involving a clay object with a rectangular, three dimensional shape, which has been fired by a kiln. In formal logical analysis, the analyst compares different words with each other, and their definitions. Formal analysis also involves the categorization, and then the comparing and contrasting of ideas as words. This use of form is known as formalism, and, the foregoing is how the concept of form is used in legal analysis. Substance, on the other hand is based on the idea that certain ideas have weight. A substantial idea has much more weight than one which is simply paper thin. Two ideas or words which are substantially analogous are ideas which have at least 5 aspects in common, but not all. For example, one might judge the kitchen table to be substantially analogous to the dining room

table. While analogical reasoning determines whether two concept are alike or analogous, analytic reasoning compares and contrast the two ideas to see if they are the same or different. Thus, A is like B, is an analogical statement. While, A is not B, is a formal analytic statement. Thus, we can see that form and substance are not the same concepts, and that each has its own definition and function. In his article, referenced herein, Duncan Kennedy fails to sufficiently state, define, and explicate the concepts of form and substance.