Legal History Commons^™

Legal Institutions In Professor H.L.A. Hart's Concept Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Christians And The Military, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Making Room For Critical Race Theory In International Law: Some Practical Pointers, Penelope Andrews

Articles & Chapters

In addition to assessing the pertinence of critical race theory in unmasking international law's colonial, racist and patriarchal underpinnings, this paper attempts to suggest practical ways in which a critical race theoryapproach can enrich the international legal system, by giving a voice to the voiceless and by addressing the conditions of marginality in which much of the developing world is trapped.

This paper will do three things. First, it will peruse the contemporary global situation with respect to international law and human rights. Second, it will assess the contribution of critical race theory in advancing an understanding of, and solution …

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Cornell Law Faculty Publications

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?

Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

Critical Race Theory And Postcolonial Development Theory: Observations On Methodology, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Psychotherapeutic Practice As A Model For Postmodern Legal Theory, Francis J. Mootz Iii

Scholarly Works

Critical legal theory is in need of reconstruction and rehabilitation. By most accounts, the goal of critical legal theory is to reveal the deep structure of the legal system that remains unrecognized in, and even obscured by, the self-understanding of legal actors. Scholars traditionally moved beyond the superficial level of legal doctrine either by adopting a rationalistic orientation and analyzing legal concepts or by adopting an empiricist orientation and analyzing the economic and sociological features of legal institutions. However, during the past thirty years there has been a tremendous diversification in these critical approaches. For example, the critical legal studies …

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

Scholarly Works

Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept …

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

Scholarly Works

This Symposium brings the considerable talents of a diverse group of scholars to bear on a pressing problem in legal theory: Whether critical theory is possible after the hermeneutical turn. All too often, this problem is framed to invite an “either-or” response. Either we reject the hermeneutical turn and hew to a traditional account of critique anchored by an unimpeachable standard (whether economic, historical, conceptual, cognitive, or otherwise), or we take the hermeneutical turn by embracing radical historical contingency and fluidity, thereby forsaking the possibility of critique and surrendering to conservative conventionalism or inviting postmodern chaos. This Symposium challenges this …

The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

All Faculty Scholarship

While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …