Law Commons^™

Toward A History Of Children As Witnesses, David S. Tanenhaus, William Bush

Scholarly Works

This brief essay offers a selective overview of recent trends in the historical scholarship on American childhood from the origins of the American Revolution to the early years of the Cold War. This overview of the literature has two purposes. First, it highlights recent socio-cultural scholarship that presents substantive challenges to the conventional ways of understanding the history of children and the law. Second, in so doing, it points out that legal histories concerned solely with doctrinal matters can, and often do, present a limited and distorted window into the past. Instead, the essay argues that the place of children, …

Reconsidering Procedural Conformity Statutes, Thomas O. Main

Scholarly Works

No abstract provided.

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

Scholarly Works

As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …

A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Book Review Symposium: Introduction, Francis J. Mootz Iii

Scholarly Works

A foreword to a symposium held to discuss Gene Garver’s book, For the Sake of Argument: Practical Reasoning, Character and the Ethics of Belief (University of Chicago Press, 2004).

Judicial Discretion To Condition, Thomas O. Main

Scholarly Works

No abstract provided.

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Ricoeur’S Critical Hermeneutics And The Psychotherapeutic Model Of Critical Theory, Francis J. Mootz Iii

Scholarly Works

This paper seeks to extend Ricoeur’s acclaimed mediation of the Gadamer-Habermas debate. Freud’s psychoanalytic practice was an important touchstone for the debate, and Ricoeur’s reading of Freud provides a key to his critical intervention in the debate. The emerging postmodern account of psychotherapeutic practice provides a model of the critical hermeneutics that Ricoeur championed. Bringing Ricoeur’s insights to bear on this model, we can advance the questioning spurred by the Gadamer-Habermas debate without pretending to bring closure to the unending conversation of thinking.

The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky

Scholarly Works

The 7th and 8th editions of Black's Law Dictionary were the first edited by Bryan Garner. This review of the 8th edition of Black's Law Dictionary focuses on the approach taken by Garner in thoroughly revising the dictionary and places his work in the context of the recent history of legal dictionaries and lexicography.

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

Scholarly Works

Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …

Adr: The New Equity, Thomas O. Main

Scholarly Works

No abstract provided.

The Integration Of Law And Fact In An Uncharted Parallel Procedural Universe, Thomas O. Main

Scholarly Works

No abstract provided.

Learning From Practice: What Adr Needs From A Theory Of Justice, Katherine R. Kruse

Scholarly Works

Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to engage in consensus-building dialogue around contested issues.

However, while …

Review Of Peter Cane, Responsibility In Law And Morality (2002), Leslie C. Griffin

Scholarly Works

No abstract provided.

Traditional Equity And Contemporary Procedure, Thomas O. Main

Scholarly Works

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

Book Review, David S. Tanenhaus

Scholarly Works

This concise book explores the origins and early history of the Cook County Juvenile Court, the world’s first such court. The court, which opened on July 3, 1899, in Chicago, reflected its founders’ profound faith both in science to solve social problems and the power of the state to provide for the best interests of its children. Yet, as Getis argues, the juvenile court did not live up to its initial promise, and “instead of a place of experimentation and reform—which it could have been—or a place of individualized justice guided by science—perhaps an unattainable goal—the court became an institution …

“Owing To The Extreme Youth Of The Accused”: The Changing Legal Response To Juvenile Homicide, David S. Tanenhaus, Steven A. Drizin

Scholarly Works

In this essay, the authors seek to dispel the myth that the juvenile court was never intended to deal with serious and violent offenders; a myth that has largely been unchallenged, especially in the mainstream media, and one that critics of the juvenile court have used to undermine its legitimacy. The discovery of homicide data from the Chicago police department from the early twentieth century, the era in which modern juvenile justice came of age, provides us with new historical date with which to put this dangerous myth to rest, by showing that the nation’s model juvenile court—the Cook County …

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

Scholarly Works

No abstract provided.

Growing Up Dependent: Family Preservation In Early Twentieth-Century Chicago, David S. Tanenhaus

Scholarly Works

Beginning in 1911 with Illinois’ passage of the Funds to Parents Act—the first statewide mothers’ pensions legislation—the Chicago Juvenile Court built a two-track system for dependency cases that used the gender of single parents to track their children. The first or “institutional” track followed a nineteenth century model of family preservation that poor families had relied upon since before the Civil War, in which parents had used institutions to provide short-term care for their children during hard times. The juvenile court also established a “home-based” track for dependency that reflected a new model of family preservation. Progressive child-savers denounced the …

Dedication For Justice Hans Linde: A Modest Relativism, Leslie C. Griffin

Scholarly Works

No abstract provided.

Procedural Uniformity And The Exagerated Role Of Rules, Thomas O. Main

Scholarly Works

No abstract provided.

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 …

Book Review, David S. Tanenhaus

Scholarly Works

After missing an opportunity as a graduate student in the early 1970s to meet the aged Miriam Van Waters, whose distinguished career as a penal reformer spanned from the First World War to the launching of Sputnik, historian Estelle Freedman now attempts to capture her through biography. Freedman’s effort is a valiant one because Van Waters, a student of psychology, struggled with her own identity and sexuality, and repeatedly pushed away anyone who tried to get too close. One can only imagine how the intensely private Van Waters would have reacted to learning that her most personal conflicts would become …

Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii

Scholarly Works

This essay appeared in a book celebrating Lon Fuller's contributions to jurisprudence. In it, Professor Mootz argued that Fuller's conception of secular natural law, designated as an "internal morality of law," lends welcome assistance to the effort to articulate a new direction in legal philosophy. He defended Fuller's natural-law approach from the common misinterpretations that it is either a hollow echo of the natural law tradition or an essentialist conception of law at odds with the legal-realist world that he helped to create with his doctrinal scholarship. By reading his famous, "The Case of the Speluncean Explorers," in a new …

Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii

Scholarly Works

Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure. The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. The irrelevance of the natural law tradition in …

Law As Language (Reviewing Peter M. Tiersma, Legal Language (1999)), Francis J. Mootz Iii

Scholarly Works

The jacket of Professor Peter Tiersma’s book Legal Language illustrates the problem inherent in a linguistic study of legal language. The jacket features a legal document in fine print, with an overlay of a magnifying glass that brings some of the indecipherable words into focus. The problem, of course, is that a scholar conducting a linguistic study of language does not have access to a distinct "magnifying glass" that can posit language as an object; he can study language only with language.

Tiersma attempts to avoid the most difficult problems of self-reference that follow from the "interpretive turn" in social …

Between Truth And Provocation: Reclaiming Reason In American Legal Scholarship, Francis J. Mootz Iii

Scholarly Works

Truth has regained a strong voice in American legal scholarship. Like a groggy patient slowly emerging from a traumatic operation, legal theory is being coaxed back to consciousness by Dan Farber and Suzanna Sherry. They are fighting the debilitating illness of radical multiculturalism and its attendant relativism; they proclaim that the cure can be found in the power of truth, the force or reason, and the integrity of the word. Unfortunately, the patient is unlikely to recover while in the care of Farber and Sherry, even though their operation must be judged a success on its own terms. By equating …

Continuing Classroom Conversation Beyond The Four Whys, Jeffrey W. Stempel, Bailey Kuklin

Scholarly Works

LAW school classes regularly prove Santayana's aphorism. Although nearly every law teacher desires to keep discussion focused and forward-moving, there are more than a few moments of thundering silence experienced in the classroom. Most of us adjust to this inevitability by positing some pedagogical virtue to still air and contenting ourselves with the knowledge that conversation-stopping “whys?” are usually delivered by us as teachers rather than the students. Perhaps we are underappreciative of the value discomfitting silence has, but we generally prefer that the conversation continue, that we miss the opportunity to feel simultaneously smug and uncomfortable, and that students …