Jurisprudence Commons^™

What Law Is Like, George P. Fletcher

Faculty Scholarship

It is not easy to do philosophy in the tradition of Wittgenstein and Malcolm. The human mind gravitates toward authority – the Bible, great teachers, poets, gurus, even judges. Lawyers, in particular, are captives of authoritive constitutions, statutes, cases, and ruling doctrines. We cannot make a move without citing a source as a backup.

Perhaps this is the way it should be, for as lawyers or legal theorists, we speak in a particular legal culture and tradition. We cultivate that tradition, even as we dissent and subject it to criticism. The tradition is defined by the authorities that have shaped …

Law And Phrenology, Pierre Schlag

Publications

As the intellectual credentials of American law become increasingly dubious, the question arises: how has this discipline been intellectually organized to sustain belief among its academic practitioners? This Commentary explores the nineteenth-century pseudo-science of phrenology as a way of gaining insight into the intellectual organization of American law. Although there are, obviously, significant differences, the parallels are at once striking and edifying. Both phrenology and law emerged as disciplinary knowledges through attempts to cast them in the form of sciences. In both cases, the "sciences" were aesthetically organized around a fundamental ontology of reifications and animisms -- "faculties" in the …

The Empty Circles Of Liberal Justification, Pierre Schlag

Publications

No abstract provided.

Law As The Continuation Of God By Other Means, Pierre Schlag

Publications

No abstract provided.

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Michigan Law Review

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. My discussion focuses on …

Gossip And Metaphysics: The Personal Turn In Jurisprudential Writing, Michael Ansaldi

Michigan Law Review

A Review of Neil Duxbury, Patterns of American Jurisprudence and John Henry Schlegel American Legal Realism and Empirical Social Science

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

The Antinomy Of Coherence And Determinacy, William A. Edmundson

Faculty Publications By Year

Coherence and determinacy are both apparent desiderata for bodies of law and legal systems. Unfortunately, in legal systems of any complexity, increasing the degree of one invariably brings about a lessening of the other. For theories of law - such as Ronald Dworkin's - that emphasize the importance of coherence in judicial reasoning, while requiring as a condition of legitimacy that legal rights pre-exist judicial decisions, this must be an unwelcome fact.

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

Law's Normative Claims, Philip E. Soper

Book Chapters

People can look at non-conforming behaviour in two ways: either the person is acting immorally or the moral theory that condemns the behaviour is mistaken. To choose the former is to reflect a confidence in the existing moral theory, while choosing the latter is evidence that moral theory for that particular behaviour is wrong. This point says a lot about the link between the descriptive and evaluative enterprises of law. The development of basic moral principles, which draws from moral intuition, is a similar process when it comes to developing social practices, which in turn draw from human behaviour. Legal …

The New Wittgensteinians And The End Of Jurisprudence, George A. Martinez

Faculty Journal Articles and Book Chapters

This article seeks to critically evaluate the new approach to jurisprudence and legal justification. In particular, one of the most significant contributions of the article is that it seeks to evaluate the new approach by, among other things, examining the history of the Wittgensteinian descriptive project in other areas of philosophy. The article focuses primarily on the work of Philip Bobbitt who has offered the leading example of this type of neo-Wittgensteinian approach. The arguments generated in the course of the article, however, may be applied against any neo-Wittgensteinian internalist approach to jurisprudence. Thus, the article seeks to provide a …

The Chaotic Pseudotext, Paul F. Campos

Publications

No abstract provided.

This Could Be Your Culture--Junk Speech In A Time Of Decadence, Pierre Schlag

Publications

No abstract provided.

Hiding The Ball, Pierre Schlag

Publications

No abstract provided.

You Prove It! Why Should I?, Lawrence B. Solum

Faculty Scholarship

This Article explores ideas developed in Richard Gaskins' provocative book Burdens of Proof in Modem Discourse.' One idea, familiar and powerful, is that the conceptual device of a burden of proof is functionally related to the problem of uncertainty. A second idea, less familiar and more controversial, is that modem discourse is characterized by the use of burden shifting arguments that are premised on a special sort of ignorance-ignorance of a hidden or transcendental realm of values. This Article advances two claims in relation to these ideas. Part I argues that an adequate understanding of the function of burdens of …

Table Of Contents - Cardozo Law Review, Volume 15, Issue 5

Cardozo Law Review

No abstract provided.

Values, Pierre Schlag

Publications

No abstract provided.

Secular Fundamentalism, Paul F. Campos

Publications

No abstract provided.

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

Situating Political Liberalism, Lawrence B. Solum

Faculty Scholarship

We have another book by John Rawls, Political Liberalism, published in 1993 and the subject of this symposium. Already, Political Liberalism has been widely cited in law journals and reviewed in a variety of publications. This Foreword situates Political Liberalism in contemporary legal and political discourse. Part I places Rawls's new book in context, briefly recalling the argument of A Theory of Justice, and then exploring the influence of Rawls's work on contemporary legal thought. Part II provides a brief outline of Political Liberalism, relating its themes to the issues raised by Rawls's prior work. Part III introduces the contributions …

Constructing An Ideal Of Public Reason, Lawrence B. Solum

Faculty Scholarship

In deciding to what ideal citizens should aspire in political debate, some people contend that an ideal of political morality should mirror the freedom of expression. This Article undertakes the construction of an ideal of public reason. It begins with an investigation of the term "public reason." The author considers various possibilities for an ideal or normative standard of public reason. As each option is considered, some possible formulations are discarded and additional specifications are added. He concludes with the ideal that is constructed through this process of elaboration, evaluation, and elimination.

Alternative Court Structures In The Future Of The California Judiciary: 2020 Vision, Lawrence B. Solum

Faculty Scholarship

How should citizens in a modern pluralist democracy debate and discuss public affairs? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, …

The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider

Articles

The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law. It is probably impossible to practice family law without wrestling with the imponderable choice between rules and discretion. Consider, for example, how many areas of family law are now being fought over in-just those terms. For decades we have lived with an abundantly discretionary way of resolving …

Judaism And Postmodernism, Suzanne Last Stone

Cardozo Law Review

No abstract provided.

That Obscure Object Of Desire: Hermeneutics And The Autonomous Legal Text, Paul Campos

Publications

No abstract provided.

Book Review, Paul Campos

Publications

No abstract provided.

Foreword: History, Fable And Constitutional Interpretation, Lawrence B. Solum

Faculty Scholarship

Professor Solum provides a foreword to the symposium: One Hundred Twenty-Five Years of the Reconstruction Amendments.

Understanding Disagreement, The Root Issue Of Jurisprudence: Applying Wittgenstein To Positivism, Critical Theory, And Judging, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Pre-Figuration And Evaluation, Pierre Schlag

Publications

In this response to Professor Rubin, Professor Schlag argues that a prescriptive theory of evaluation does not free an evaluator from the bias inherent in his own pre-figurations. On the contrary, the belief that better evaluative criteria will advance the cause of fairer evaluation is itself an effect of flawed and unrationalized pre-figurations of conventional legal thought. Professor Schlag argues that the evaluation question and its attendant disputes arise from a more significant development--the unraveling of the dominant paradigm of legal thought, the decomposition of normative legal thought.

Rights, Communities, And Tradition, Brian Slattery

Articles & Book Chapters

This paper argues that there is a close connection between basic human rights and communal bonds. It criticizes the philosophical views of Alan Gewirth and Alasdair MacIntyre, which in differing ways deny this connection.