Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 3 of 3

Full-Text Articles in Entire DC Network

Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman

Stephen M. Feldman

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades.  Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances.  Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self.   But the three traditional rationales are incompatible with our digital age.  In particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society.  The time for a new rationale has arrived.  The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …


Stephenmfeldmannothingnew.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmannothingnew.Pdf, Stephen M. Feldman

Stephen M. Feldman

Recent events have seemed to inject politics into American judicial institutions.  As a result, many observers worry that the Supreme Court, in particular, has become politicized.  According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns.  These worries arise from a  mistaken assumption: that law and politics can be separated and independent in the process of judicial decision making.  But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic.  Adjudication in accord with a pure rule …


Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman

Stephen M. Feldman

Postmodern jurisprudence was all the rage in the 1990s.  Two of the most renowned postmodernists, Stanley Fish and Pierre Schlag, both persistently criticized mainstream legal scholars for believing they were modernist selves--independent, sovereign, and autonomous agents who could remake the social and legal world merely by writing a law review article.  Then Fish and Schlag turned on each other.  Each attacked the other for making the same mistake: harboring a modernist self.  I revisit this skirmish for two reasons.  First, it helps explain the current moribund state of postmodern jurisprudence.  If two of the leading postmodernists could not avoid embedding …