Law Commons^™

The Concept Of Law And The New Public Law Scholarship, Edward L. Rubin

Michigan Law Review

This article is an attempt to identify the nature of an emerging field of legal scholarship known as "New Public Law." "New," of course, is a dangerous term. Our society's image of itself as forward looking and its tendency to market itself to itself through claims of novelty has spawned a range of phrases from the New Deal to the New Criticism to various new, improved laundry detergents. One does not hear very many positive comments about the "old" these days. The argument that old ways of doing things are better has become an emblem of mistaken thought, and the …

The New Public Law Movement: Moderation As A Postmodern Cultural Form, William N. Eskridge Jr., Gary Peller

Michigan Law Review

The past twenty years have witnessed an explosion of public law scholarship, as legal scholars reconceptualized themes of administrative law, legislation, and constitutional law; created almost from scratch whole new areas of public law scholarship, including discrimination, environmental, and consumer protection theory; and enlivened discourse with concepts drawn from microeconomics, public choice theory, civic republicanism, practical philosophy, and hermeneutics. This intellectually intense activity has suggested the possibility that public law discourse has entered a "critical stage" and stimulated the Michigan Law Review to hold a conference in October 1990 on whether there is something that might be called "New Public …

The Unintended Cultural Consequences Of Public Policy: A Comment On The Symposium, Richard H. Pildes

Michigan Law Review

In this essay, I want to try to build on it in order to suggest forms a genuinely New Public Law scholarship might take. My aim is to embrace much of what New Public Law thought has urged: the marginality of common law doctrine or judicial decisionmaking; the need to attend to profound disaffections with the modem regulatory state; an acceptance of the complex, dynamic relationship of public policy and private understandings; a recognition that public values are constituted not only at the grandest levels of policy formation, but also in the myriad microscopic day-to-day experiences of policy. In my …

Bart Bartosic: What You See Is Not What You Get, Theodore J. St. Antoine

Articles

With "Bart" Bartosic, what you see is not necessarily what you get. Anyone even vaguely acquainted with him knows I am not talking about duplicity; on occasion, Bart can be almost painfully forthright. Nonetheless, on first meeting, most persons are likely to view him as the very soul of politesse - perhaps actually too deferential and accommodating. Yet behind that beguiling exterior can be found a backbone of cast iron, a mind like a steel trap, and (to extend the metallic figure) a willingness, when the situation demands, to be as hard as nails in dealing with either ideas or …

Jean-Luc Godard And Critical Legal Studies (Because We Need The Eggs), Jeffrey L. Harrison, Amy R. Mashburn

Michigan Law Review

The New Wave in filmmaking is now thirty years old. Critical Legal Studies (CLS) has been around in one form or another for approximately a third of that time. We believe that by examining the avant-garde movement in film we may be able to anticipate what is in store for the avant-garde movement in law. Our conclusion is that just as New Wave film methodology has had only a limited impact on the film industry generally, CLS is likely to have a limited - perhaps only stylistic - effect on jurisprudential development.

The reason for the shortfall is that Godard …

William Warner Bishop, Jr.:Remembering A Gentle Giant, George P. Smith Ii

Michigan Journal of International Law

The name William Warner Bishop, Jr. came into my vocabulary when I was a student at the Indiana University Law School in Bloomington in the early 1960s. There I enrolled in a course styled simply, "International Law," in which we used the course book entitled INTERNATIONAL LAW: CASES AND MATERIALS by Professor Bishop. The man Bill Bishop entered my life the Summer of 1965 in The Hague, Netherlands, at the Academie du Droit International where I was enrolled as a student. Among the several other courses which I had elected, the "General Course of Public International Law" given by William …

William W. Bishop, Jr.: Vita And Bibliography, Michigan Journal Of International Law

Michigan Journal of International Law

No abstract provided.

Recollections Of Professor Bishop As A Teacher Of Teachers Of Transnational Law, Covey T. Oliver

Michigan Journal of International Law

It will be interesting to me to see, should this modest tribute survive editing, whether others writing in this Symposium have also chosen to single out Bill Bishop's influence on a post-World War II generation of teachers of international public law, conflict of laws, comparative public law, and admiralty: men and women who have in considerable part been led, aided, or influenced by him into one or several aspects of the global normative science, named "transnational law" by one of his own great teachers (and mine), Philip C. Jessup.' If others have also sounded this theme, reiteration of it can …

The Future Of Liberal Legal Scholarship, Ronald K.L. Collins, David M. Skover

Michigan Law Review

Earl Warren is dead.

A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed.

The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." We present our views as a commentary to emphasize their preliminary character; they represent our current assessment of where liberals stand and where they might redirect their energies.

The Practice And Discourse Of Legal Scholarship, Edward L. Rubin

Michigan Law Review

This article begins with a discussion of the critique of methodology, a characterization of standard legal scholarship in terms of the critique, and an exploration of the critique's relevance for this form of scholarship. The next section discusses the modes of legal analysis represented by the critical legal studies, law and literature, and law as practical reason movements, which draw from many of the same philosophic sources as the critique. Despite their common origin, these movements do not rely on the critique of methodology itself, and do not focus on standard legal scholarship. The Article then proceeds to offer a …

Introduction: "Plus Ça Change …?", Stephen B. Burbank

University of Michigan Journal of Law Reform

This is a time of self-conscious attention to legal scholarship that, although hardly unprecedented, must seem remarkable to many in the profession. We hear of "malaise" in the academy, of the decline of doctrinal scholarship, and more generally, of the decline of law as an autonomous discipline. For some who believe it, the news may be profoundly disturbing, tolling the thirteenth hour on entire careers. For others, bearing the news-and having it believed-may be essential to launching or sustaining careers.

Most of us, I suspect, are inclined to suspend judgment, inured more than most mortals to the harsh reality that …

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery Katz

University of Michigan Journal of Law Reform

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Derek Bok And The Merger Of Law And Economics, Herbert Hovenkamp

University of Michigan Journal of Law Reform

Both the novelty and the uniqueness of the "law and economics" movement of the last fifteen years have been greatly exaggerated. Law and economics has been with us for at least a half century, in nearly every area of private and public law. The most outspoken protagonists of law and economics admit that economics had a presence in antitrust and regulatory policy long before the work of Ronald Coase, Lester Telser, and others inspired its expanded use in areas of private law, such as tort and contract. But even then, some of those who would make such an admission would …

Public Law Litigation And Legal Scholarship, Richard L. Marcus

University of Michigan Journal of Law Reform

It is hard to turn around nowadays without hearing about the malaise in legal scholarship. For example, Richard Posner, a former president of the Harvard Law Review, announced in that periodical's centenary issue that the Review "may have reached the peak of its influence-may, indeed, have started its journey down the mountain." If even the august Harvard Law Review is sliding, one does sense an ancien regime aroma of decay. But Posner's main message was that scholarship has become more diverse, and that the hegemony of traditional doctrinal analysis has been broken. More generally, the malaise is attributed to …

Neutral Principles In The 1950'S, Gary Peller

University of Michigan Journal of Law Reform

In this Essay, I explore the intellectual setting within which Wechsler believed that defending freedom also required defending the legality of racial domination. I argue that the key to understanding this apparent paradox is to grasp the ideological/ cultural complex of the 1950's within which mainstream American intellectuals in law and in other disciplines came to terms with the disintegration of the traditional, "old order" paradigms of the late nineteenth and early twentieth centuries by means of an intense and overriding distinction between controversial issues of values and noncontroversial questions of framework and structure within which substantive conflict would take …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

University of Michigan Journal of Law Reform

Many of the other Articles in this Symposium demonstrate that a single great piece of legal scholarship can have an enormous impact on the development of legal doctrine. This Article differs in two respects. First, it focuses not on a single seminal work, but rather on a developing literature authored by a large group of scholars. Second, it attempts to assess the impact of that literature not on the growth of legal theory, but on the development of a single legal institution-the United States Courts of Appeals.

Law Review Articles That Backfire, Gerald L. Neuman

University of Michigan Journal of Law Reform

Other articles in this Symposium have chronicled the real-world triumphs of legal scholarship. I have sadder tales to tell. I would like to discuss law review articles that have had an apparent influence on the course of legal development, but not in the manner that the author intended.

Many of the readers of this Symposium may have their favorite examples of this phenomenon. Such misfortunes can befall anyone; both of the instances I will describe involve a highly respected constitutional scholar, Professor Henry Paul Monaghan of Columbia Law School. They illustrate two mechanisms by which good scholarship can lead …

Prejudice, Politics, And Proof, Peter Tillers

Michigan Law Review

In the last fifteen years there has been a great resurgence of interest in fundamental theoretical analysis of the nature of factual proof in litigation. Many serious scholars, both in the law school world and outside it, have turned their energies in this direction. William L. Twining, Quain Professor of Jurisprudence at University College London, has been a major figure in this growing movement. He recently published a painstaking and scholarly study of Bentham's and Wigmore's theories of evidence, inference, and proof in adjudication. This book is part of Twining's broader, long-term effort to develop a general theoretical framework for …

Promise Fulfilled And Principle Betrayed, James J. White

Articles

My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

John W. Reed, James K. Robinson

Michigan Law Review

A tribute to John W. Reed

John W. Reed And The High Style, Theodore J. St. Antoine

Articles

John Reed is the Fred Astaire of the law school world. That doesn't mean John would win prizes for his waltzing and tangoing; the kinship runs much deeper. There is the same purity of line in gesture and speech, the same trimness of content and grace of expression, and the same ineffable talent for brightening up a scene just by entering it.

John W. Reed, Wilbert J. Mckeachie

Michigan Law Review

A tribute to John W. Reed

John W. Reed, Douglas W. Hillman

Michigan Law Review

A tribute to John W. Reed

John W. Reed, Austin G. Anderson

Michigan Law Review

A tribute to John W. Reed

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

Articles

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

John W. Reed And The High Style, Theodore J. St. Antoine

Articles

John Reed is the Fred Astaire of the law school world. That doesn't mean John would win prizes for his waltzing and tangoing; the kinship runs much deeper. There is the same purity of line in gesture and speech, the same trimness of content and grace of expression, and the same ineffable talent for brightening up a scene just by entering it. John certainly brightened up the law school days for this former student, a generation or so ago. We jaded upperclass people actually looked forward to John's Evidence classes, and he seldom if ever let us down. The sessions …

Francis A. Allen, Terrance Sandalow

Articles

Writing a brief tribute to Frank Allen, a man I admire as much as any I have known, should have been easy and pleasurable. It has proved to be very difficult. The initial difficulty is the occasion for the tribute. Frank's decision to take early retirement from the University and to resettle in a warmer climate deprives the Sandalows of frequent contact with two of our favorite people. The act of writing requires an acceptance of that loss that I have not yet achieved. A second difficulty is that Frank has been an important influence in my life for thirty …

Francis A. Allen, Norval Morris

Michigan Law Review

A tribute to Francis A. Allen

Francis A. Allen -- Selected Bibliography, Michigan Law Review

Michigan Law Review

A Selected Bibliography of Francis A. Allen's works.

Francis A. Allen: 'Confront[Ing] The Most Explosive Problems' And 'Plumbing All Issues To Their Full Depth Without Fear Or Prejudice', Yale Kamisar

Articles

Frank Allen began his distinguished teaching career more than thirty-five years ago - at a time when, at more law schools than we like to remember, "the basic criminal law course was routinely assigned to the youngest and most vulnerable member of the faculty or to that colleague suspected of mild brain damage and hence incompetent to deal with courses that really matter."' That those of us who taught criminal law years later were warmly received by our colleagues is in no small measure a tribute to the quality of mind and character and intellectual energy of people like Allen, …