Law Commons^™

On Critical Genealogy, Bernard E. Harcourt

Faculty Scholarship

Today most critical theorists who deploy history use a genealogical method forged by Nietzsche and Foucault. This genealogical approach now dominates historically inflected critique. But not all genealogical writings today, nor all philosophical debates surrounding genealogy, advance the goals of critical philosophy. It is crucial now that we assess the value of genealogical critiques. The proper metric against which to evaluate such work is whether it contributes to transforming ourselves, others, and society in a valuable way. In this article, I propose that we use the term “critical genealogy” to identify those genealogical practices that positively nourish our activity and, …

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's …

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …