Legal History Commons^™

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer

Seattle University Law Review

This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have …

Between Sanctity And Depravity: Law And Human Nature In Martin Luther's Two Kingdoms, Witte Jr.

Villanova Law Review (1956 - )

No abstract provided.

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Lawyers As Prophets, Thomas L. Shaffer

Journal Articles

Legal ethics is about injustice. My effort here is part of the broad, modern academic enterprise, and of the broad, modern professional enterprise now usually called professional responsibility. Both date from the Watergate scandal in the administration of President Richard M. Nixon, and the rejection, by legal academics and practicing lawyers, of the behavior of the President and other lawyers in that affair. Our modern enterprise, like the biblical Exodus, was born in outrage at the abuse of legal power.

In university law schools such as this one, legal ethics is now a discipline characterized by schools of thought on …

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

Young Christopher Langdell, 1826-1854: The Formation Of An Educational Reformer, Bruce A. Kimball

Journal of Legal Education

No abstract provided.

Extending The Revisionist Project, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Simplification Of Private Law, Andrew Kull

Journal of Legal Education

No abstract provided.

Learning To Be A Legal Historian: Reflections Of A Nontraditional Student, Jonathan Rose

Journal of Legal Education

No abstract provided.

Rule Of Law And The Limits Of Sovereignty: The Private Prison In Jurisprudential Perspective, Ahmed A. White

Publications

No abstract provided.

Rethinking The Penalty Phase, Kyron Huigens

Articles

This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …

Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White

Publications

No abstract provided.

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Journal Articles

John Howard Yoder, prophet and theologian, died in his office at Notre Dame on December 30, 1997, the day after his seventieth birthday. Peter Steinfels's obituary in the New York Times of January 7, 1998, described my friend and colleague Yoder as "a Mennonite theologian whose writings on Christianity and politics had a major impact on contemporary Christian thinking about the church and social ethics." Steinfels did not describe Yoder's thought as jurisprudence; neither, for that matter, did Yoder. But there was (and is), throughout Yoder's scholarship, an implicit theology of law, a jurisprudence. A jurisprudence that is particularly noticeable …

From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman

Vanderbilt Law Review

What distinguished premodern from modern American jurisprudence? Whereas most commentators agree that the transition from premodernism to modernism occurred around the Civil War,' recent writings reveal dissension regarding the nature of antebellum and postbellum jurisprudence. In a wonderfully detailed study of Christopher Columbus Langdell, his jurisprudence, and his case method of teaching, William P. LaPiana argues that a defining feature of Langdell's postbellum legal science was a positivism that contrasted with a natural law orientation characteristic of the earlier antebellum jurisprudence. In a provocative critical essay, Robert W. Gordon argues to the contrary: LaPiana's emphasis on natural law during the …

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Journal Articles

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal …

The Retrieval Of The Democratic Ethos, Richard J. Bernstein

Cardozo Law Review

For over thirty years I have been a sympathetic although critical reader of Habermas. Initially, I was struck by his nuanced insight into the American pragmatic tradition and his appropriation of the radical democratic ethos of the pragmatic movement. I felt then, and still believe, that Habermas has a more profound and subtle understanding of what is best and most enduring in pragmatism-especially in the thought of Peirce, Dewey, and Mead-than many of my American colleagues. I was also attracted to Habermas for other reasons. He is a dialectical thinker who has the courage to buck fashionable trends-who refuses to …

Law And Political Culture, Dick Howard

Cardozo Law Review

A decade ago Habermas announced a project in his The Theory of Communicative Action. Those who slipped into the habit of talking about this project as his Rechtsphilosophie may be surprised by the sobriety of Habermas's choice for the book's title. The foreword to Faktizitat und Geltung rejects any comparison with Hegel's systematic Grundlinien der Philosophie des Rechts. Habermas contrasts his "methodical-pluralistic" proposals to the idealistic concepts of Geist and Sittlichkeit, which are unable to account for complex modern societies. The apparent modesty of Habermas's claims is underlined by his subtitle, Contributions to a Discourse Theory of …

Habermas And The Counterfactual Imagination, Michael K. Power

Cardozo Law Review

The epistemological problem of critical theories is easy to state but hard to resolve. On the one hand, if the theories are too descriptive and draw their conceptual resources from the ideas and institutions which currently exist, they lose their critical force. While they may provide elaborate reconstructions of the structure of social practices, they remain internal to these practices, part of a field of knowledge in which, at worst, theory is merely a form of public relations. On the other hand, if they articulate forms of critique that are entirely external to the systems of knowledge and practice that …

Liberties And Popular Sovereignty: On Jurgen Habermas’S Reconstruction Of The System Of Rights, Ingeborg Maus

Cardozo Law Review

The justifications Jurgen Habermas gives for a system of rights bring together the central intentions of his theory of law. The chapter of his book which provides these justifications is devoted in part to developing the underlying tension between "facticity and validity" as the basic structure of law taking the extreme and, for that reason, illuminating aspect of the guarantee of liberty through coercion. It also elucidates the motives for reestablishing the centuries-old connection between legal theory and social theory in the context of the most topical social problems. Whereas all subsectors of contemporary society have been juridified on a …

Communicative Power And The Concept Of Law, Ulrich K. Preub

Cardozo Law Review

The idea that the law was founded on the self-interest and the will of rational individuals was first developed and proven in the social contract theories of Hobbes, Locke, and Rousseau. These theorists reacted-admittedly, in extremely different ways-to the problem of finding a collective basis in a world which had lost its common religious fundaments and the economic basis of feudal communal life. The European world of the seventeenth century had fallen apart. The universalism of the catholic world had been replaced by a plurality of subjective worldviews championed by individuals, groups, sects, and new social entities. How could one …

"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz

Articles

Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

The Constitutionality Of Legislative Supermajority Requirements: A Defense, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …