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Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy
Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy
Publications
This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.
The Place Of Force In General Jurisprudence, Jeffrey A. Pojanowski
The Place Of Force In General Jurisprudence, Jeffrey A. Pojanowski
Journal Articles
This essay reviews Frederick Schauer’s book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer’s criticism on that score is sound. His analysis of the role coercion can play in accomplishing law’s moral tasks is also welcome and important. Nevertheless, Schauer’s jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of …
Empirical Doctrine, Jessie Allen
Empirical Doctrine, Jessie Allen
Articles
We can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal determinacy, …