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Foucault And Gadamer: Like Apples And Oranges Passing In The Night, Gary Wickham
Foucault And Gadamer: Like Apples And Oranges Passing In The Night, Gary Wickham
Chicago-Kent Law Review
This Article explores some points of connection between Michel Foucault's "governmentality" approach and Hans-Georg Gadamer's hermeneutics and concludes that Gadamer's project does not easily mesh with the Foucaultian critique. Instead, this Article argues that Foucault's reading of Heidegger diverges significantly from Gadamer's, and that an attempt to link the philosophers through their common heritage is unavailing. In conclusion, this Article suggests that the divide between hermeneutics and critical theory (in a Foucaultian sense) cannot be bridged easily, despite the few vague family resemblances evident in the literature.
Table Of Contents - Issue 2, Chicago-Kent Law Review
Table Of Contents - Issue 2, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
Law As Interpretation, Charles W. Collier
Law As Interpretation, Charles W. Collier
Chicago-Kent Law Review
This Article situates the field of law within the interpretive disciplines and analyzes a number of key legal issues as problems of interpretation. The discussion begins with some historically important interpretive paradigms and methodological metaphors in the natural sciences, the humanities, and the social sciences. Then, within the field of law, a common law narrative, a constitutional narrative, and a community-society paradigm are described and explicated as basic interpretive frameworks of legal decision making.
Borders Or Horizons? Gadamer And Habermas Revisited, Fred R. Dallmayr
Borders Or Horizons? Gadamer And Habermas Revisited, Fred R. Dallmayr
Chicago-Kent Law Review
In this Article, Dallmayr examines the status of borders and demarcations. Are borders markers of separation and exclusion, or are they more like hyphens or horizons indicating a correlation without sameness, a distinctness opening up to alterity? This Article investigates this question by returning to the -so-called "Gadamer-Habermas Debate." While Part I recapitulates some of Hans-Georg Gadamer's teachings, especially with reference to a "universal hermeneutics," Part II reviews some of Jürgen Habermas's critical rejoinders and initiatives aiming basically at a parceling of forms of human knowledge. In the concluding part, an effort is made to highlight the significance of the …
Interpretation, Critique, And Adjudication: The Search For Constitutional Hermeneutics, John T. Valauri
Interpretation, Critique, And Adjudication: The Search For Constitutional Hermeneutics, John T. Valauri
Chicago-Kent Law Review
This Article seeks a model for a constitutional hermeneutics in an examination of two key debates in philosophical hermeneutics—the Gadamer-Betti debate over the role of author's meaning in interpretation and the Gadamer-Habermas debate over transcendence and critique. It compares these to the framers' intent and nonoriginalism disputes in constitutional theory. But the result is not another method of constitutional interpretation. Rather it is a hermeneutically informed way of viewing the practice of constitutional adjudication itself.
Nonmajority Unions, Employee Participation Programs, And Worker Organizing: Irreconcilable Differences?, Carol Brooke
Nonmajority Unions, Employee Participation Programs, And Worker Organizing: Irreconcilable Differences?, Carol Brooke
Chicago-Kent Law Review
The debate over section 8(a)(2) of the National Labor Relations Act and the appropriate role of employer-sponsored employee participation plans ("EPPs") in the workplace coincides with growing attention to the usefulness of nonmajority unions ("NMUs") in providing a voice for workers. This Note examines the effectiveness of an NMU in a manufacturing plant in rural North Carolina, and the interaction of that worker-run organization with EPPs established by management. The experience of these workers suggests that section 8(a)(2) should be amended to require employers with EPPs to offer equal support and assistance to NMUs.
Gadamer, Heidegger, And The Social Dimensions Of Language: Reflections On The Critical Potential Of Hermeneutical Philosophy, Ingrid Scheibler
Gadamer, Heidegger, And The Social Dimensions Of Language: Reflections On The Critical Potential Of Hermeneutical Philosophy, Ingrid Scheibler
Chicago-Kent Law Review
Beginning with an account of recent efforts, like Georgia Warnke's, to demonstrate Hans-Georg Gadamer's relevance to legal theory, this Article looks at Gadamer's conception of language and tradition, claiming that, while he shares important features of Heidegger's thought, Gadamer productively grounds his view of language and tradition in such a way that the everyday realm of public discourse, characterized by a healthy injunction to foster reasoned debate amongst divergent perspectives and interpretations, has a vital and integral role to play. While Gadamer criticizes the Enlightenment's hostility to tradition, paradoxically, his concept of linguistically mediated tradition has far more in common …
Foreword, Francis J. Mootz Iii
The Uses Of Aristotle In Garamer's Recovery Of Consultative Reasoning: Sunesis, Sungnômê, Epieikeia, And Sumbouleuesthai, P. Christopher Smith
The Uses Of Aristotle In Garamer's Recovery Of Consultative Reasoning: Sunesis, Sungnômê, Epieikeia, And Sumbouleuesthai, P. Christopher Smith
Chicago-Kent Law Review
Using Hans-Georg Gadamer's exposition of Aristotle's adjuncts to phronêsis, or the knowing that guides deliberation, namely understanding, forbearance, and clemency, this Article attempts to retrieve a communal reasoning still evident in Homer but increasingly covered over beginning with Plato and continuing through Hobbes and Locke, in the English-language tradition, and, more recently, Rawls and Toulmin. This Article shows that, in Gadamer's reading of him, Aristotle emerges as a crucial interruption of this tendency of Western thought to abstract from the communal origins of reasoning and to start instead from what an isolated individual sees for himself or herself and …
Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich
Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich
Chicago-Kent Law Review
Early common law, both Anglo-Saxon and Anglo-Norman, offered plaintiffs a choice between love and law. Lovedays were more frequent than lawdays, and love explicitly took precedence over formal law. The judgment of love took the form of agreement through amity rather than enmity, affect rather than agon or trial. Using the institution of lovedays as a starting point, Goodrich's Article goes on to trace a longer-term continental history of courts and judgments of love that spans over five centuries and plays out in poetry, theater, and literature as much as in any secular legal institution. Offering a synopsis of the …
How To Be Critical, Stephen M. Feldman
How To Be Critical, Stephen M. Feldman
Chicago-Kent Law Review
Many opponents of critical legal thought assert that it is easy to be critical but hard to be constructive. From this perspective, critical legal activity is simple, while traditional theory is difficult. Feldman argues otherwise. Hans-Georg Gadamer's emphasis on the role and power of tradition in the hermeneutic process suggests how tradition forcefully constrains us. Our prejudices, derived from our communal traditions, limit what we can understand and perceive. Thus, to perform critical activity proves often to be a formidable challenge. It requires the writer somehow to disrupt the reader's basic and deep-seated assumptions, assumptions that typically emerge from a …
The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii
The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii
Chicago-Kent Law Review
In his recent book, Cultural Software, Jack Balkin offers a new approach to ideology and critical theory in an effort to overcome the deficiencies he finds in Hans-Georg Gadamer's hermeneutical account. This Article demonstrates that the productive aspects of Balkin's theory are central to Gadamer's philosophy, and the unproductive elements in Balkin's theory are best explained by his deviation from Gadamer's philosophical hermeneutics. Mootz rejects Balkin's transcendental argument in favor of Gadamer's insistence that critique is a feature of hermeneutical experience and that critical theory is the practice of maximizing the critical distance that occurs only within hermeneutical engagements. …
Traces Of Violence: Gadamer, Habermas, And The Hate Speech Problem, R. George Wright
Traces Of Violence: Gadamer, Habermas, And The Hate Speech Problem, R. George Wright
Chicago-Kent Law Review
This Article offers fresh insight into the controversial issue of hate speech regulation by borrowing major themes from the works of Hans-Georg Gadamer and Jürgen Habermas. Wright emphasizes Gadamer's connection between language and historical traditions to demonstrate how hate speech differs from any real attempt at genuine speaking. Wright then focuses on Habermas's notion of a communicative ideal that helps differentiate between speakers who intend to invite open discourse and typical epithet speakers who likely have no such purpose. Wright concludes that the contributions of Gadamer and Habermas enable us to determine what types of speech promote the values underlying …
Work-In-Progress: Gadamer, Tradition, And The Common Law, Allan C. Hutchinson
Work-In-Progress: Gadamer, Tradition, And The Common Law, Allan C. Hutchinson
Chicago-Kent Law Review
In this Article, Hutchinson provides an account of the common law tradition of judging that draws upon Hans-Georg Gadamer's writings that advance the intellectual project of critical legal theory. Hutchinson contends that Gadamer's hermeneutics can be utilized to offer a more radical and transformative reading of the common law tradition and explores what it means to treat law seriously as a living rhetorical tradition. This Article explores Hutchinson's theory by concentrating on the recent U.S. Supreme Court physician-assisted suicide decision in Washington v. Glucksberg. This Article relies upon the notion of "work-in-progress" as a productive optic through which to …
Critical Hermeneutics: The Intertwining Of Explanation And Understanding As Exemplified In Legal Analysis, George H. Taylor
Critical Hermeneutics: The Intertwining Of Explanation And Understanding As Exemplified In Legal Analysis, George H. Taylor
Chicago-Kent Law Review
Understanding and explanation are often viewed as oppositional: understanding is considered a search for the meaning a text provides, while explanation employs a critical, analytic method that maintains a distance from the text it interrogates. This Article demonstrates that in legal interpretation, understanding and explanation are not opposed but inextricably interconnected. Drawing first on the work of Robert Bork and Justice Antonin Scalia, this Article shows how elements of critique are present even within forms of legal interpretation that seek to maintain fidelity to the "understanding" of authorial meaning. Second, it illuminates the converse, that theories drawn to methods of …
Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin L. West
Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin L. West
Chicago-Kent Law Review
This Article examines the impact of the twenty-year-old "turn" toward interpretation in legal and constitutional scholarship. In part, because of the impact of Hans-Georg Gadamer's work, scores of critical legal scholars, including some of those writing for this Symposium, now think of adjudication and legal discourse generally as primarily interpretive, rather than economic or political or distinctively legal enterprises. This turn toward interpretation has opened the way for new insights and ways of thinking, but it has also come with costs. It has, for example, diverted attention from the ways in which constitutional law might be appropriately criticized by reference …
The New Deal At Work, Peter Cappelli
The New Deal At Work, Peter Cappelli
Chicago-Kent Law Review
The traditional employment system with secure, lifetime jobs offering predictable advancement and stable pay has given way to a new, more open-ended arrangement that is continually being negotiated between employer and employee. Evidence is presented both about the factors driving this new relationship and the subsequent changes in labor market outcomes. Tighter labor markets have, perhaps temporarily, shifted power from employers to employees, leading to new problems for employers and fundamental challenges to traditional models for management. These developments also raise new challenges for society and in particular to the long-standing interest in protecting employees from some of the destructive …
Melting Into Air? Downsizing, Job Stability, And The Future Of Work, Sanford M. Jacoby
Melting Into Air? Downsizing, Job Stability, And The Future Of Work, Sanford M. Jacoby
Chicago-Kent Law Review
Contrary to popular belief, career-type employment practices remain the norm in the U.S. labor market, and employers continue to shoulder risks for employees. Evidence to support this claim is drawn from a variety of sources: data on tenure and mobility; analysis of new job creation and job quality; recent employer responses to labor-market tightness; and data on wage premiums, fringe benefits, and training. Yet employees are bearing more risk today, including risk of job loss and of compensation fluctuations. This is an important change from the past. Nevertheless, there are limits—economic, demographic, and political—to the risk-shifting process.
Farmworkers, Nonimmigration Policy, Involuntary Servitude, And A Look At The Sheepherding Industry, Kimi Jackson
Farmworkers, Nonimmigration Policy, Involuntary Servitude, And A Look At The Sheepherding Industry, Kimi Jackson
Chicago-Kent Law Review
Congress should abolish the nonimmigrant visa for farmworkers because of its inherently abusive and unjust nature. The visa allows abuse of farmworkers to flourish because guest workers, who live in the United States only for a short period of time, have no hope of becoming permanent residents. The workers constantly fear deportation and are unlikely to assert their rights in court. Because guest workers, by nature of their visas, may only work for one employer and the consequence for quitting is deportation, the workers may be forced to endure abusive treatment. Legal coercion prevents agricultural guest workers from leaving their …
Bad Medicine: The Anticompetitive Side-Effects Of Physician Unionization, Thomas Hamilton Segars
Bad Medicine: The Anticompetitive Side-Effects Of Physician Unionization, Thomas Hamilton Segars
Chicago-Kent Law Review
In response to the predominance of managed health care, ever-increasing numbers of physicians are turning to unionization as a means of negotiating contracts with larger insurers. While physician unionization has a history of both political and legal controversy, recent federal legislation aims to make the practice legitimate. This Note discusses the trend toward physician unionization, the resulting anticompetitive effects, as well as possible alternatives for physicians seeking to bargain with the powerful health care insurance industry.
Policing The "Wild West" World Of Internet Pharmacies, Kerry Toth Rost
Policing The "Wild West" World Of Internet Pharmacies, Kerry Toth Rost
Chicago-Kent Law Review
An Internet pharmacy sells medications through its Web site. Legitimate, law-abiding Internet pharmacies benefit modern healthcare in numerous ways; however, some Internet pharmacies conduct illegal and unsafe prescribing and dispensing practices that can endanger the health of the patients the pharmacy serves. Controversy exists over which regulatory body should govern the sale of prescription drugs over the Internet and how Internet pharmacies should be regulated. This Note contends that cooperation of state and federal regulatory agencies and careful updating and utilization of current regulatory avenues can adequately promote the safety of Internet pharmacies. This Note further contends that the dangers …
So What? The Individual Right To The Ownership Of Firearms Under The Ninth Amendment, Robert E. Bodine
So What? The Individual Right To The Ownership Of Firearms Under The Ninth Amendment, Robert E. Bodine
Chicago-Kent Law Review
This Note argues that the Second Amendment to the United States Constitution fails to resolve the debate over the existence of a fundamental, individual right to keep and bear arms because the Ninth Amendment is in fact the proper source for that right. This Note performs a historical analysis of the creation of the Constitution, reviews the little Supreme Court precedent regarding the right, and then demonstrates how the Supreme Court has applied the Ninth Amendment in cases dealing with other issues. Bodine concludes that applying the Ninth Amendment in that same manner necessarily leads to an inference of a …
Disarmed By Time: The Second Amendment And The Failure Of Originalism, Daniel A. Farber
Disarmed By Time: The Second Amendment And The Failure Of Originalism, Daniel A. Farber
Chicago-Kent Law Review
Originalism provides the core arguments for an individual right "to keep and bear Arms." The appropriate role of original intent in constitutional law, however, has been debated for the past two decades. In this Article, Farber illustrates how the Second Amendment exemplifies the classic, well-known criticisms of originalism. This does not prove, of course, that the conventional understanding of the Second Amendment should be retained. But, Farber concludes, advocates for a drastic expansion of Second Amendment rights will need something beyond the ambiguous historical record if they wish to show why, in today's world, gun rights warrant constitutional protection.
The History And Politics Of Second Amendment Scholarship: A Primer, Carl T. Bogus
The History And Politics Of Second Amendment Scholarship: A Primer, Carl T. Bogus
Chicago-Kent Law Review
The introductory Article to this Symposium reviews the history and politics of Second Amendment scholarship, beginning in 1960, when the first article endorsing the individual right model was published, challenging what had previously been the accepted view that the Second Amendment grants only a collective right to keep and bear arms within the government-organized militia. Bogus describes how gun rights organizations embarked on a bootstrap campaign to develop a large body of writing supporting the individual right model, much of it by lawyers directly employed by or representing gun rights organizations, and then argued that the sheer mass of this …
The Second Amendment: The Highest State Of Originalism, Jack N. Rakove
The Second Amendment: The Highest State Of Originalism, Jack N. Rakove
Chicago-Kent Law Review
Originalism is the theory of constitutional interpretation that holds that the meaning of the various provisions of the Constitution was fixed at the moment of their adoption, and that the goal of interpretation is to recover that historical meaning and apply it to current disputes. No subject of current constitutional controversy is more closely tied to originalist theories of interpretation than the debate over the meaning of the Second Amendment. But for all the lip service given to originalism and all the homage Americans pay to the wisdom of the founders, there is little agreement among scholars as to how …
Natural Rights And The Second Amendment, Steven J. Heyman
Natural Rights And The Second Amendment, Steven J. Heyman
Chicago-Kent Law Review
A growing body of scholarship claims that the Second Amendment was intended to enable individuals to exercise their natural right to self-defense against violence. In this Article, Heyman shows that this view is based on a misunderstanding of the natural rights tradition, as reflected in the works of Locke and Blackstone, the post-Revolutionary state declarations of rights, and the debates over the Constitution and the Bill of Rights. Natural rights theory held that, when individuals entered society, they largely gave up their right to use force against others in return for the protection that they received under the law. And …
If It Ain't Broke Don't Fix It: An Argument For The Codification Of The Quill Standard For Taxing Internet Commerce, Sidney S. Silhan
If It Ain't Broke Don't Fix It: An Argument For The Codification Of The Quill Standard For Taxing Internet Commerce, Sidney S. Silhan
Chicago-Kent Law Review
The Internet Tax Freedom Act neither changed the status of the law nor did it create a new standard for taxability; it simply stopped any new taxes from being imposed while the economy adjusted to the explosion of Internet commerce. This Note will argue that the economy is adjusting, and indeed not all that much has changed in the sales tax collection arena. Furthermore, Quill continues to be the standard by which out-of-state sellers are taxed, and Congress should settle the issue by codifying the Quill requirement of substantial nexus before taxation can occur.
Why Should Gang Membership Be A Status Symbol? Status Crimes And City Of Chicago V. Youkhana, Mark D. Brookstein
Why Should Gang Membership Be A Status Symbol? Status Crimes And City Of Chicago V. Youkhana, Mark D. Brookstein
Chicago-Kent Law Review
In City of Chicago v. Morales, the Supreme Court struck down Chicago's anti-gang loitering ordinance on void-for-vagueness grounds. As a result, the Court did not answer the question left open by the Illinois Court of Appeals in City of Chicago v. Youkhana of whether the ordinance criminalized the status of being a gang member in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. This Comment considers the question by examining the historical backdrop of status offenses as it relates to both constitutional and common law precedent. In order to determine whether an otherwise constitutional reenactment of …
Table Of Contents - Issue 1, Chicago-Kent Law Review
Table Of Contents - Issue 1, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
To Hold And Bear Arms: The English Perspective, Lois G. Schwoerer
To Hold And Bear Arms: The English Perspective, Lois G. Schwoerer
Chicago-Kent Law Review
This Article discusses the English background to the Second Amendment of the Constitution of the United States and undertakes to contest the prevailing opinion that the old medieval English duty of service in the militia, imposed theoretically on all males between the age of sixteen and sixty, was transformed at the time of England's Glorious Revolution in 1688–89 into the right of the individual to keep and bear arms. The author of that thesis, Professor Joyce Malcolm of Bentley College in Massachusetts, maintains that Article VII of the Declaration of Rights, 1689 (better known as the Bill of Rights, its …