Legal Theory Commons^™

On Critical Geneaology, Bernard E. Harcourt

Faculty Scholarship

Today most critical theorists who deploy history use a genealogical method forged by Nietzsche and Foucault. This genealogical approach now dominates historically inflected critique. But not all genealogical writings today, nor all philosophical debates surrounding genealogy, advance the goals of critical philosophy. It is crucial now that we assess the value of genealogical critiques. The proper metric against which to evaluate such work is whether it contributes to transforming ourselves, others, and society in a valuable way. In this article, I propose that we use the term “critical genealogy” to identify those genealogical practices that positively nourish our activity and, …

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …

The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin

San Diego Law Review

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a …

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation, Anthony D'Amato

Faculty Working Papers

No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. Many judges may feel that their own standing in the community could be undermined by disclosures that other judges invent or misstate facts. The issue here is not which judges have integrity, …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".

Is Equality A Totally Empty Idea?, Anthony D'Amato

Faculty Working Papers

Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …

Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey

Book Reviews

Reviewing Wendy Brown & Janet Halley, Left Legalism/Left Critique (2001).

Left legal theory is in crisis. This crisis reflects a broader problem of contemporary U.S. politics: the lack of grand ideas capable of mobilizing meaningful opposition to the triumph of the political right. Right-wing legal theory has contributed to that dramatic political change by promoting ideas questioning the foundations of the twentieth century liberal welfare and regulatory state.

This review essay analyzes a rare recent attempt to revive left legal theory in the face of the right's triumph: the anthology Left Legalism/Left Critique edited by Wendy Brown and Janet Halley …

Teaching Wesley Hohfeld's Theory Of Legal Relations, Curtis Nyquist

Journal of Legal Education

No abstract provided.

Fear And Loathing Of Politics In The Legal Academy, William H. Simon

Journal of Legal Education

No abstract provided.

The Sanctity Of Association: The Corporation And Individualism In American Law, Liam Seamus O'Melinn

San Diego Law Review

American society and law display a deep reverence for the group, as long as it assumes corporate or quasi-corporate form. This reverence is not fleeting; rather, it has deep historical roots. In fact, it was there before the republic came into being and it played a profound role in the founding of the nation. Moreover, these roots are not only traditional, but philosophical and religious as well. This Article explores those roots, with three goals in mind. First, to correct the mistaken notion that American law has historically demonstrated a commitment to the individual at the expense of the group, …

Making Sense Of Modern Jurisprudence: The Paradox Of Positivism And The Challenge For Natural Law, Philip E. Soper

Articles

Karl Llewellyn once said, referring to Roscoe Pound's work m jurisprudence, that it was difficult to tell on what level the writing proceeded: sometimes it seemed to be little more than bedtime stones for a tired bar; at other tunes it appeared to be on the level of the after-dinner speech or a thought provoking essay, neither of which were quite the "considered and buttressed scholarly discussion" that one expected to find. Llewellyn's complaint serves as a warning, though a somewhat ambiguous one, to those who give lectures on jurisprudence.

On the one hand, I do not plan to present …

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …

Alternative Methodologies In Contemporary Jurisprudence: Comments On Dworkin, Philip E. Soper

Articles

I have two brief points to make. Both involve recent developments in jurisprudence, by which I mean by and large the subject that Ronald Dworkin has just been discussing. Indeed, the first point is little more than an acknowledgement of the debt that is owed to Dworkin, not only for his specific contributions to this field, but for the implications of his work for law teaching generally.

What 'Counts' As Law?, Anthony D'Amato

Faculty Working Papers

A reader of jurisprudence might conclude that only philosophers raise the question whether international law may be said to exist or is really law. But in terms of frequency, the question is probably raised more often by governments and states that are not trying to be philosophical. The increasing attention being paid to the need for, and the procedures for, objective validation of rules of international law in a burgeoning literature of international law evidences the seriousness of the problem, the responsibility of scholars for careful scholarship in this area of legal theory, and ultimately the good possibility of generally …

Hart's Concept Of A Legal System, Michael Payne

William & Mary Law Review

No abstract provided.

Reason And Reality In Jurisprudence, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Law In Action And Social Theory, Fowler Vincent Harper

Articles by Maurer Faculty

No abstract provided.

Book Review. The Paradoxes Of Legal Science By Benjamin N. Cardozo, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.