There are two kinds of knowledge law school teaches: legal rules on the one hand, and tools for thinking about legal problems on the other. Although the tools are far more interesting and useful than the rules, they tend to be neglected in favor of other aspects of the curriculum. In The Legal Analyst, Ward Farnsworth brings together in one place all of the most powerful of those tools for thinking about law.
From classic ideas in game theory such as the “Prisoner’s Dilemma” and the “Stag Hunt” to psychological principles such as hindsight bias and framing effects, from ideas in jurisprudence such as the slippery slope to more than two dozen other such principles, Farnsworth’s guide leads readers through the fascinating world of legal thought. Each chapter introduces a single tool and shows how it can be used to solve different types of problems. The explanations are written in clear, lively language and illustrated with a wide range of examples.
The Legal Analyst is an indispensable user’s manual for law students, experienced practitioners seeking a one-stop guide to legal principles, or anyone else with an interest in the law.
With the incisiveness and lucid style for which he is renowned, Ronald Dworkin has written a masterful explanation of how the Anglo-American legal system works and on what principles it is grounded. Law’s Empire is a full-length presentation of his theory of law that will be studied and debated—by scholars and theorists, by lawyers and judges, by students and political activists—for years to come.
Dworkin begins with the question that is at the heart of the whole legal system: in difficult cases how do (and how should) judges decide what the law is? He shows that judges must decide hard cases by interpreting rather than simply applying past legal decisions, and he produces a general theory of what interpretation is—in literature as well as in law—and of when one interpretation is better than others. Every legal interpretation reflects an underlying theory about the general character of law: Dworkin assesses three such theories. One, which has been very influential, takes the law of a community to be only what the established conventions of that community say it is. Another, currently in vogue, assumes that legal practice is best understood as an instrument of society to achieve its goals. Dworkin argues forcefully and persuasively against both these views: he insists that the most fundamental point of law is not to report consensus or provide efficient means to social goals, but to answer the requirement that a political community act in a coherent and principled manner toward all its members. He discusses, in the light of that view, cases at common law, cases arising under statutes, and great constitutional cases in the Supreme Court, and he systematically demonstrates that his concept of political and legal integrity is the key to Anglo-American legal theory and practice.
What is law? This question has preoccupied philosophers from Plato to Thomas Hobbes to H. L. A. Hart. Yet many others find it perplexing. How could we possibly know how to answer such an abstract question? And what would be the point of doing so? In Legality, Scott Shapiro argues that the question is not only meaningful but vitally important. In fact, many of the most pressing puzzles that lawyers confront—including who has legal authority over us and how we should interpret constitutions, statutes, and cases—will remain elusive until this grand philosophical question is resolved.
Shapiro draws on recent work in the philosophy of action to develop an original and compelling answer to this age-old question. Breaking with a long tradition in jurisprudence, he argues that the law cannot be understood simply in terms of rules. Legal systems are best understood as highly complex and sophisticated tools for creating and applying plans. Shifting the focus of jurisprudence in this way—from rules to plans—not only resolves many of the most vexing puzzles about the nature of law but has profound implications for legal practice as well.
Written in clear, jargon-free language, and presupposing no legal or philosophical background, Legality is both a groundbreaking new theory of law and an excellent introduction to and defense of classical jurisprudence.
This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense.
The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.
The status of Islam in Western societies remains deeply contentious. Countering strident claims on both the right and left, Legal Integration of Islam offers an empirically informed analysis of how four liberal democracies—France, Germany, Canada, and the United States—have responded to the challenge of integrating Islam and Muslim populations. Demonstrating the centrality of the legal system to this process, Christian Joppke and John Torpey reject the widely held notion that Europe is incapable of accommodating Islam and argue that institutional barriers to Muslim integration are no greater on one side of the Atlantic than the other.
While Muslims have achieved a substantial degree of equality working through the courts, political dynamics increasingly push back against these gains, particularly in Europe. From a classical liberal viewpoint, religion can either be driven out of public space, as in France, or included without sectarian preference, as in Germany. But both policies come at a price—religious liberty in France and full equality in Germany. Often seen as the flagship of multiculturalism, Canada has found itself responding to nativist and liberal pressures as Muslims become more assertive. And although there have been outbursts of anti-Islamic sentiment in the United States, the legal and political recognition of Islam is well established and largely uncontested.
Legal Integration of Islam brings to light the successes and the shortcomings of integrating Islam through law without denying the challenges that this religion presents for liberal societies.
Since the Cold War ended, China has become a global symbol of disregard for human rights, while the United States has positioned itself as the world’s chief exporter of the rule of law. How did lawlessness become an axiom about Chineseness rather than a fact needing to be verified empirically, and how did the United States assume the mantle of law’s universal appeal? In a series of wide-ranging inquiries, Teemu Ruskola investigates the history of “legal Orientalism”: a set of globally circulating narratives about what law is and who has it. For example, why is China said not to have a history of corporate law, as a way of explaining its “failure” to develop capitalism on its own? Ruskola shows how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day.
The first Sino-U.S. treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated U.S. territorial colonialism after the Spanish-American War in 1898, and found its fullest expression in an American district court’s jurisdiction over the “District of China.” With urgent contemporary implications, legal Orientalism lives on in the enduring damage wrought on the U.S. Constitution by late nineteenth-century anti-Chinese immigration laws, and in the self-Orientalizing reforms of Chinese law today. In the global politics of trade and human rights, legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways.
A powerful argument for the essential role of morality in law, getting at the heart of key debates in public life.
What is law? And how does it relate to morality? It’s common to think that law and morality are different ways of regulating our lives. But Scott Hershovitz says that this is a mistake: law is a part of our moral lives. It’s a tool we use to adjust our moral relationships. The legal claims we advance in court, Hershovitz argues, are moral claims. And our legal conflicts are moral conflicts.
Law Is a Moral Practice supplies fresh answers to fundamental questions about the nature of law and helps us better appreciate why we disagree about law so deeply. Reviving a neglected tradition of legal thought most famously associated with Ronald Dworkin, Hershovitz engages with important legal and political controversies of our time, including recent debates about constitutional interpretation and the obligations of citizens and officials to obey the law.
Leavened by entertaining personal stories, guided by curiosity rather than ideology, moving beyond entrenched dichotomies like the opposition between positivism and natural law, Law Is a Moral Practice is a thought-provoking investigation of the philosophical issues behind real-world legal debates.
Legalism deals with the area between political theory and jurisprudence. Its aim is to bridge the intellectual gulf separating jurisprudence from other kinds of social theory by explaining why, in the view of historians and political theorists, legalism has fallen short in its approach to both morals and politics. Judith Shklar proposes that, instead of regarding law as a discrete entity resting upon a rigid system of definitions, legal theorists should treat it, along with morals and politics, as part of an all-inclusive social continuum.
The first part of the book examines law and morals and criticizes the approach to morals of both the analytical positivists and the natural law theorists. The second part, on law and politics, deals with legalism as a political ideology that comes into conflict with other policies, particularly during political trials.
Incisively and stylishly written, the book constitutes an open challenge to reconsider the fundamental question of the relationship of law to society.
Pulling the rug out from debates about interpretation, The Language of Statutes joins together learning from law, linguistics, and cognitive science to illuminate the fundamental issues and problems in this highly contested area. Here, Lawrence M. Solan argues that statutory interpretation is alive, well, and not in need of the major overhaul that many have suggested. Rather, he suggests, the majority of people understand their rights and obligations most of the time, with difficult cases occurring in circumstances that we can predict from understanding when our minds do not work in a lawlike way.
Solan explains that these cases arise because of the gap between our inability to write crisp yet flexible laws on one hand and the ways in which our cognitive and linguistic faculties are structured on the other. Making our lives easier and more efficient, we’re predisposed to absorb new situations into categories we have previously formed—but in the legislative and judicial realms this can present major difficulties. Solan provides an excellent introduction to statutory interpretation, rejecting the extreme arguments that judges have either too much or too little leeway, and explaining how and why a certain number of interpretive problems are simply inevitable.
What is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions? Eric Posner argues that social norms are sometimes desirable yet sometimes odious, and that the law is critical to enhancing good social norms and undermining bad ones. But he also argues that the proper regulation of social norms is a delicate and complex task, and that current understanding of social norms is inadequate for guiding judges and lawmakers. What is needed, and what this book offers, is a model of the relationship between law and social norms. The model shows that people's concern with establishing cooperative relationships leads them to engage in certain kinds of imitative behavior. The resulting behavioral patterns are called social norms.
Posner applies the model to several areas of law that involve the regulation of social norms, including laws governing gift-giving and nonprofit organizations; family law; criminal law; laws governing speech, voting, and discrimination; and contract law. Among the engaging questions posed are: Would the legalization of gay marriage harm traditional married couples? Is it beneficial to shame criminals? Why should the law reward those who make charitable contributions? Would people vote more if non-voters were penalized? The author approaches these questions using the tools of game theory, but his arguments are simply stated and make no technical demands on the reader.
"An extraordinary collection of provocative, insightful, and inspiring essays on the future of law and democracy in the twenty-first century."
---Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago
"These thoughtful essays diagnose democracy's perilous present, and---more importantly---they explore avenues to democracy's rescue through humanization of law."
---Kenneth L. Karst, David G. Price and Dallas P. Price Professor of Law Emeritus, UCLA
Contributors
Martin Böhmer, Universidad de San Andres, Buenos Aires, Argentina
M. Cathleen Kaveny, University of Notre Dame
Howard Lesnick, University of Pennsylvania
The Honorable John T. Noonan Jr., Ninth Circuit Court of Appeals
H. Jefferson Powell, Duke University
Jedediah Purdy, Duke University
Jed Rubenfeld, Yale University
A.W. Brian Simpson, University of Michigan
Barry Sullivan, Jenner and Block LLP, Chicago
Joseph Vining, University of Michigan
Robin West, Georgetown University
James Boyd White, University of Michigan
Winner of the John Phillip Reed Book Award, American Society for Legal History
A legal historian opens a window on the monumental postwar effort to remake fascist Germany and Japan into liberal rule-of-law nations, shedding new light on the limits of America’s ability to impose democracy on defeated countries.
Following victory in WWII, American leaders devised an extraordinarily bold policy for the occupations of Nazi Germany and Imperial Japan: to achieve their permanent demilitarization by compelled democratization. A quintessentially American feature of this policy was the replacement of fascist legal orders with liberal rule-of-law regimes.
In his comparative investigation of these epic reform projects, noted legal historian R. W. Kostal shows that Americans found it easier to initiate the reconstruction of foreign legal orders than to complete the process. While American agencies made significant inroads in the elimination of fascist public law in Germany and Japan, they were markedly less successful in generating allegiance to liberal legal ideas and institutions.
Drawing on rich archival sources, Kostal probes how legal-reconstructive successes were impeded by German and Japanese resistance on one side, and by the glaring deficiencies of American theory, planning, and administration on the other. Kostal argues that the manifest failings of America’s own rule-of-law democracy weakened US credibility and resolve in bringing liberal democracy to occupied Germany and Japan.
In Laying Down the Law, Kostal tells a dramatic story of the United States as an ambiguous force for moral authority in the Cold War international system, making a major contribution to American and global history of the rule of law.
“An extraordinarily good synthesis from an amazing range of philosophical, legal, and technological sources . . . the book will appeal to legal academics and students, lawyers involved in e-commerce and cyberspace legal issues, technologists, moral philosophers, and intelligent lay readers interested in high tech issues, privacy, [and] robotics.”
—Kevin Ashley, University of Pittsburgh School of Law
As corporations and government agencies replace human employees with online customer service and automated phone systems, we become accustomed to doing business with nonhuman agents. If artificial intelligence (AI) technology advances as today’s leading researchers predict, these agents may soon function with such limited human input that they appear to act independently. When they achieve that level of autonomy, what legal status should they have?
Samir Chopra and Laurence F. White present a carefully reasoned discussion of how existing philosophy and legal theory can accommodate increasingly sophisticated AI technology. Arguing for the legal personhood of an artificial agent, the authors discuss what it means to say it has “knowledge” and the ability to make a decision. They consider key questions such as who must take responsibility for an agent’s actions, whom the agent serves, and whether it could face a conflict of interest.
While innovative ideas and creative works increasingly drive economic success, the historic approach to encouraging innovation and creativity by granting property rights has come under attack by a growing number of legal theorists and technologists. In Laws of Creation, Ronald Cass and Keith Hylton take on these critics with a vigorous defense of intellectual property law. The authors look closely at the IP doctrines that have been developed over many years in patent, copyright, trademark, and trade secret law. In each area, legislatures and courts have weighed the benefits that come from preserving incentives to innovate against the costs of granting innovators a degree of control over specific markets. Over time, the authors show, a set of rules has emerged that supports wealth-creating innovation while generally avoiding overly expansive, growth-retarding licensing regimes.
These rules are now under pressure from detractors who claim that changing technology undermines the case for intellectual property rights. But Cass and Hylton explain how technological advances only strengthen that case. In their view, the easier it becomes to copy innovations, the harder to detect copies and to stop copying, the greater the disincentive to invest time and money in inventions and creative works. The authors argue convincingly that intellectual property laws help create a society that is wealthier and inspires more innovation than those of alternative legal systems. Ignoring the social value of intellectual property rights and making what others create and nurture “free” would be a costly mistake indeed.
Despite international conventions and human rights declarations, millions of people have suffered and continue to suffer torture, slavery, or violent deaths, with no remedy or recourse. They have fallen, in essence, “below the law,” outside of law’s protection. Often violated by their own governments, sometimes with support from transnational corporations, or nations benefiting from human rights violations, how can these victims find justice? Lawyers Beyond Borders reveals the inner workings of the advances and retreats in the quest for redress and restoration of human rights for those whom international legal-political systems have failed. The process of justice begins in the US, with a handful of human rights lawyers steeped in the American tradition of advancing civil rights through civil litigation. As the civil rights movement gained traction and an ample supply of lawyers, this small cadre turned their attention toward advancing international human rights, via the US legal system. They sought to build another piece of the rights revolution, this time for survivors of egregious human rights violations in faraway lands. These cases were among the most unlikely to be slated for victory: The abuses occurred abroad; the victims are aliens, usually with few, if any, resources; the perpetrators are politically powerful, resourced, and well connected, often members of governments, militaries, or multinational corporations. The legal and political systems’ structures are mostly stacked against these survivors, many who bear the scars of trauma and terror.
Lawyers Beyond Borders is about agency. It is about how, in the face of powerful interests and seemingly insurmountable obstacles—political, psychological, economic, geographical, and physical—a small group of lawyers and survivors navigated a terrain of daunting barriers to begin building, case-by-case, new pathways to justice for those who otherwise would have none.
Law reform struggles have always been a part of the grassroots lesbian and gay agenda. These critical essays examine the politics of these engagements, of lesbians, gay men, and the law in the United States, Canada, and the United Kingdom. From a wide range of perspectives, the contributors combine new conceptual insights with a concern for the practicalities of political engagements, tackling such vital topics as legal definitions of homosexuality, AIDS activism, and race and sexuality.
Contributors: Katherine Arnup, Susan Boyd, Peter M. Cicchino, Davina Cooper, Bruce R. Deming, Mary Eaton, William F. Flanagan, Leo Flynn, Shelley A. M. Gavigan, Leslie J. Moran, Katherine M. Nicholson, Cynthia Petersen, Ruthann Robson, and the editors.
Water management plays an increasingly critical role in national and international policy agendas. Growing scarcity, overuse, and pollution, combined with burgeoning demand, have made socio-political and economic conflicts almost unavoidable. Proposals to address water shortages are usually based on two key assumptions: (1) water is a commodity that can be bought and sold and (2) “states,” or other centralized entities, should control access to water.
Liquid Relations criticizes these assumptions from a socio-legal perspective. Eleven case studies examine laws, distribution, and irrigation in regions around the world, including the United States, Nepal, Indonesia, Chile, Ecuador, India, and South Africa. In each case, problems are shown to be both ecological and human-made. The essays also consider the ways that gender, ethnicity, and class differences influence water rights and control.
In the concluding chapter, the editors draw on the essays’ findings to offer an alternative approach to water rights and water governance issues. By showing how issues like water scarcity and competition are embedded in specific resource use and management histories, this volume highlights the need for analyses and solutions that are context-specific rather than universal.
The last fifteen years have seen a tremendous growth in the number of health rights cases focusing on issues such as access to health services and essential medications. This volume examines the potential of litigation as a strategy to advance the right to health by holding governments accountable for these obligations. It includes case studies from Costa Rica, South Africa, India, Brazil, Argentina and Colombia, as well as chapters that address cross-cutting themes.
The authors analyze what types of services and interventions have been the subject of successful litigation and what remedies have been ordered by courts. Different chapters address the systemic impact of health litigation efforts, taking into account who benefits both directly and indirectly—and what the overall impacts on health equity are.
Faith in the power and righteousness of retribution has taken over the American criminal justice system. Approaching punishment and responsibility from a philosophical perspective, Erin Kelly challenges the moralism behind harsh treatment of criminal offenders and calls into question our society’s commitment to mass incarceration.
The Limits of Blame takes issue with a criminal justice system that aligns legal criteria of guilt with moral criteria of blameworthiness. Many incarcerated people do not meet the criteria of blameworthiness, even when they are guilty of crimes. Kelly underscores the problems of exaggerating what criminal guilt indicates, particularly when it is tied to the illusion that we know how long and in what ways criminals should suffer. Our practice of assigning blame has gone beyond a pragmatic need for protection and a moral need to repudiate harmful acts publicly. It represents a desire for retribution that normalizes excessive punishment.
Appreciating the limits of moral blame critically undermines a commonplace rationale for long and brutal punishment practices. Kelly proposes that we abandon our culture of blame and aim at reducing serious crime rather than imposing retribution. Were we to refocus our perspective to fit the relevant moral circumstances and legal criteria, we could endorse a humane, appropriately limited, and more productive approach to criminal justice.
Life imprisonment has replaced capital punishment as the most common sentence imposed for heinous crimes worldwide. As a consequence, it has become the leading issue in international criminal justice reform. In the first global survey of prisoners serving life terms, Dirk van Zyl Smit and Catherine Appleton argue for a human rights–based reappraisal of this exceptionally harsh punishment. The authors estimate that nearly half a million people face life behind bars, and the number is growing as jurisdictions both abolish death sentences and impose life sentences more freely for crimes that would never have attracted capital punishment. Life Imprisonment explores this trend through systematic data collection and legal analysis, persuasively illustrated by detailed maps, charts, tables, and comprehensive statistical appendices.
The central question—can life sentences be just?—is straightforward, but the answer is complicated by the vast range of penal practices that fall under the umbrella of life imprisonment. Van Zyl Smit and Appleton contend that life imprisonment without possibility of parole can never be just. While they have some sympathy for the jurisprudence of the European Court of Human Rights, they conclude that life imprisonment, in many of the ways it is implemented worldwide, infringes on the requirements of justice. They also examine the outliers—states that have no life imprisonment—to highlight the possibility of abolishing life sentences entirely.
Life Imprisonment is an incomparable resource for lawyers, lawmakers, criminologists, policy scholars, and penal-reform advocates concerned with balancing justice and public safety.
Roger Douglas compares responses to terrorism by five liberal democracies—the United States, the United Kingdom, Canada, Australia, and New Zealand—over the past 15 years. He examines each nation’s development and implementation of counterterrorism law, specifically in the areas of information-gathering, the definition of terrorist offenses, due process for the accused, detention, and torture and other forms of coercive questioning.
Douglas finds that terrorist attacks elicit pressures for quick responses, often allowing national governments to accrue additional powers. But emergencies are neither a necessary nor a sufficient condition for such laws, which may persist even after fears have eased. He argues that responses are influenced by both institutional interests and prior beliefs, and complicated when the exigencies of office and beliefs point in different directions. He also argues that citizens are wary of government’s impingement on civil liberties and that courts exercise their capacity to restrain the legislative and executive branches. Douglas concludes that the worst antiterror excesses have taken place outside of the law rather than within, and that the legacy of 9/11 includes both laws that expand government powers and judicial decisions that limit those very powers.
Janice Schuetz investigates the felony trials of nine American women from colonial Salem to the present: Rebecca Nurse, tried for witchcraft in 1692; Mary E. Surratt, tried in 1865 for assisting John Wilkes Booth in the assassination of Abraham Lincoln; Lizzie Andrew Borden, tried in 1892 for the ax murder of her father and stepmother; Margaret Sanger, tried in 1915, 1917, and 1929 for her actions in support of birth control; Ethel Rosenberg, tried in 1951 for aiding the disclosure of secrets of the atom bomb to the Soviets; Yvonne Wanrow, tried in 1974 for killing a man who molested her neighbor’s daughter; Patricia Campbell Hearst, tried in 1975 for bank robbery as a member of the Symbionese Liberation Army; Jean Harris, tried in 1982 for killing Herman Tarnower, the Diet Doctor; and Darci Kayleen Pierce, tried in 1988 for kidnapping and brutally murdering a pregnant woman, then removing the baby from the woman’s womb.
In her analysis, Schuetz is careful to define these trials as popular trials. Characteristically, popular trials involve persons, issues, or crimes of social interest that attract extensive public interest and involvement. Such trials make a contribution to the ongoing historical dialogue about the meaning of justice and the legal system, while reflecting the values of the time and place in which they occur.
Schuetz examines the kinds of communication that transpired and the importance of gender in the trials by applying a different current rhetorical theory to each trial text. In every chapter, she explains her chosen interpretive theory, compares that framework with the discourse of the trial, and makes judgments about the meaning of the trial texts based on the interpretive theory.
The past two decades have seen profound changes in the legal profession. Lives of Lawyers Revisited extends Michael Kelly’s work in the original Lives of Lawyers, offering unique insights into the nature of these changes, examined through stories of five extraordinarily varied law practices. By placing the spotlight on organizations as phenomena that generate their own logic and tensions, Lives of Lawyers Revisited speaks to the experience of many lawyers and anticipates important issues on the professional horizon.
"Michael Kelly has done it again! His Lives of Lawyers Revisited is a very easy read about some very difficult notions like 'litigation blindness' and law as a business. It presents some fascinating perspectives on our profession."
—J. Michael McWilliams, Past President, American Bar Association
"The best single book about the American realities and possibilities of the American legal profession, combining an empathic and insightful account of law practice with a penetrating analysis of the wider context of professional work."
—Marc Galanter, University of Wisconsin
"Michael Kelly believes that professional values and conduct are not realized in codes, but in the experiences of practice, and that practice draws its routines and ideals from organizations. Through his studies of lawyers in various firms, closely observed and sympathetically described, Kelly reveals how differently organizations adapt to the intense pressures of today's practice environment. His method of linking individual life-experiences to organizational strategies and the external constraints of competition and client demands infuses realism and richness into the concept of professionalism and makes this one of the most interesting and original books on professions and professionalism to appear in years."
—Robert W. Gordon, Yale Law School
"In his two volumes of Lives of Lawyers, Michael Kelly explores legal ethics in an unusual, and unusually rewarding, way. Rather than focusing on rules or arguments, Kelly looks at the kind of lives lawyers lead. Ethics, Socrates thought, is about how to live one's life, and Kelly takes the Socratic question to heart. He explores the institutions lawyers work in and the choices they make. He writes with intelligence, great insight, and above all with heart. This is a superb book."
—David Luban, Georgetown University
Michael J. Kelly is President and Chairman of the Board of the National Senior Citizens Law Center, an advocacy group for older Americans of limited means.
Anthony Kronman describes a spiritual crisis affecting the American legal profession, and attributes it to the collapse of what he calls the ideal of the lawyer-statesman: a set of values that prizes good judgment above technical competence and encourages a public-spirited devotion to the law.
For nearly two centuries, Kronman argues, the aspirations of American lawyers were shaped by their allegiance to a distinctive ideal of professional excellence. In the last generation, however, this ideal has failed, undermining the identity of lawyers as a group and making it unclear to those in the profession what it means for them personally to have chosen a life in the law.
A variety of factors have contributed to the declining prestige of prudence and public-spiritedness within the legal profession. Partly, Kronman asserts, it is the result of the triumph, in legal thought, of a counterideal that denigrates the importance of wisdom and character as professional virtues. Partly, it is due to an array of institutional forces, including the explosive growth of the country’s leading law firms and the bureaucratization of our courts. The Lost Lawyer examines each of these developments and illuminates their common tendency to compromise the values from which the ideal of the lawyer-statesman draws strength. It is the most important critique of the American legal profession in some time, and an an enduring restatement of its ideals.
In these essays J. Willard Hurst shows the correlation between the conception of individual freedom and the application of law in the nineteenth-century United States—how individuals sought to use law to increase both their personal freedom and their opportunities for personal growth. These essays in jurisprudence and legal history are also a contribution to the study of social and intellectual history in the United States, to political science, and to economics as it concerns the role of public policy in our economy. The nonlawyer will find in them demonstration of how "technicalities" express deep issues of social values.
Univeristy Press Books for Public and Secondary Schools 2013 edition
Superior Achievement by the Illinois State Historical Society, 2013
Throughout his twenty-three-year legal career, Abraham Lincoln spent nearly as much time on the road as an attorney for the Eighth Judicial Circuit as he did in his hometown of Springfield, Illinois. Yet most historians gloss over the time and instead have Lincoln emerge fully formed as a skillful politician in 1858. In this innovative volume, Guy C. Fraker provides the first-ever study of Lincoln’s professional and personal home away from home and demonstrates how the Eighth Judicial Circuit and its people propelled Lincoln to the presidency.
Each spring and fall, Lincoln traveled to as many as fourteen county seats in the Eighth Judicial Circuit to appear in consecutive court sessions over a ten- to twelve-week period. Fraker describes the people and counties that Lincoln encountered, discusses key cases Lincoln handled, and introduces the important friends he made, friends who eventually formed the team that executed Lincoln’s nomination strategy at the Chicago Republican Convention in 1860 and won him the presidential nomination.
As Fraker shows, the Eighth Judicial Circuit provided the perfect setting for the growth and ascension of Lincoln. A complete portrait of the sixteenth president depends on a full understanding of his experience on the circuit, and Lincoln’s Ladder to the Presidency provides that understanding as well as a fresh perspective on the much-studied figure, thus deepening our understanding of the roots of his political influence and acumen.
From birth certificates and marriage licenses to food safety regulations and speed limits, law shapes nearly every moment of our lives. Ubiquitous and ambivalent, the law is charged with both maintaining social order and protecting individual freedom. In this book, Cynthia L. Cates and Wayne V. McIntosh explore this ambivalence and document the complex relationship between the web of law and everyday life.
They consider the forms and functions of the law, charting the American legal structure and judicial process, and explaining key legal roles. They then detail how it influences the development of individual identity and human relationships at every stage of our life cycle, from conception to the grave. The authors also use the word "web" in its technological sense, providing a section at the end of each chapter that directs students to relevant and useful Internet sites.
Written for upper-level undergraduate and graduate students in law and society courses, Law and the Web of Society contains original research that also makes it useful to scholars. In daring to ask difficult questions such as "When does life begin?" and "Where does law begin?" this book will stimulate thought and debate even as it presents practical answers.
The notion of law as a social phenomenon would have surprised educators and scholars a century ago. For them, law was a science and the library was the ultimate source of all legal knowledge. Our contemporary willingness to see law in a social context—reflecting social relations, for example, or precipitating social changes—is a relatively recent development, spurred during the last quarter century by the work of a generation of scholars (mostly social scientists and law professors) who believe the perspectives of the social sciences are essential to a better understanding of the law.
Law and the Social Sciences provides a unique and authoritative assessment of modern sociolegal research. Its impressive range and depth, the centrality of its concerns, and the stature of its contributors all attest to the vitality of the law-and-society movement and the importance of interdisciplinary work in this field.
Each chapter is both an exposition of its author’s point of view and a survey of the pertinent literature. In treating such topics as law and the economic order, legal systems of the world, the deterrence doctrine, and access to justice, the authors explore overlapping themes—the tension between public and private domains, between diffused and concentrated power, between the goals of uniformity and flexibility, between costs and benefits—that are significant to observers not only of our legal institutions but of other social systems as well.
Can the law promote moral values even in pluralistic societies such as the United States? Drawing upon important federal legislation such as the Americans with Disabilities Act, legal scholar and moral theologian Cathleen Kaveny argues that it can. In conversation with thinkers as diverse as Thomas Aquinas, Pope John Paul II, and Joseph Raz, she argues that the law rightly promotes the values of autonomy and solidarity. At the same time, she cautions that wise lawmakers will not enact mandates that are too far out of step with the lived moral values of the actual community.
According to Kaveny, the law is best understood as a moral teacher encouraging people to act virtuously, rather than a police officer requiring them to do so. In Law’s Virtues Kaveny expertly applies this theoretical framework to the controversial moral-legal issues of abortion, genetics, and euthanasia. In addition, she proposes a moral analysis of the act of voting, in dialogue with the election guides issued by the US bishops. Moving beyond the culture wars, this bold and provocative volume proposes a vision of the relationship of law and morality that is realistic without being relativistic and optimistic without being utopian.
Brown and Halley have assembled essays from diverse contributors—law professors, philosophers, political theorists, and literary critics—united chiefly by their willingness to think critically from the left about left legal projects. The essays themselves vary by topic, by theoretical approach, and by conclusion. While some contributors attempt to rework particular left legal projects, others insist upon abandoning or replacing those projects. Still others leave open the question of what is to be done as they devote their critical attention to understanding what we are doing. Above all, Left Legalism/Left Critique is a rare contemporary argument and model for the intellectually exhilarating and politically enriching dimensions of left critique—dimensions that persist even, and perhaps especially, when critique is unsure of the intellectual and political possibilities it may produce.
Contributors: Lauren Berlant, Wendy Brown, Judith Butler, Drucilla Cornell, Richard T. Ford, Katherine M. Franke, Janet Halley, Mark Kelman, David Kennedy, Duncan Kennedy, Gillian Lester, Michael Warner
A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.
Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner’s theory steers between political theorists’ concept of deliberative democracy on the left and economists’ public-choice theory on the right. It makes a significant contribution to the theory of democracy—and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.
Kenneth Abraham explores the development and interdependency of the tort liability regime and the insurance system in the United States during the twentieth century and beyond, including the events of September 11, 2001.
From its beginning late in the nineteenth century, the availability of liability insurance led to the creation of new forms of liability, heavily influenced expansion of the liabilities that already existed, and continually promoted increases in the amount of money that was awarded in tort suits. A “liability-and-insurance spiral” emerged, in which the availability of liability insurance encouraged the imposition of more liability, and, in turn, the imposition of liability encouraged the further spread of insurance.
Liability insurance was not merely a source of funding for ever-greater amounts of tort liability. Liability insurers came to dominate tort litigation. They defended lawsuits against their policyholders, and they decided which cases to settle, fight, or appeal. The very idea behind insurance––that spreading losses among large numbers of policyholders is desirable––came to influence the ideology of tort law. To serve the aim of loss spreading, liability had to expand.
Today the tort liability and insurance systems constantly interact, and to reform one the role of the other must be fully understood.
Whether we are black, gay, Republican, women, or deaf, our associations--whether voluntary or assigned--constitute crucial and inescapable elements of our identities. Both voluntary and involuntary groups have been important in American history--more important than is generally recognized. But these groups have never been adequately addressed by law, which has as its primary focus the relationship between the individual and the state. The company we keep, says the constitutional law scholar Aviam Soifer, is presumed to be each person's own business, and generally beyond notice of the law. But as America becomes a more varied country and issues arising out of multiculturalism threaten to divide us, it becomes essential, Soifer argues, to recognize rights under the First Amendment that will protect the crucial roles of groups and communities within the larger national community.
Legal doctrine and the outcomes reached in judicial proceedings will be more coherent if we acknowledge that groups qua groups have significant legal impact. The building blocks of any quest for justice must include the groups--social, political, professional, civil, interpretive, religious--from which we derive and apply ethical standards in search of a better life. The ability to step outside traditional doctrinal boxes that concentrate on relationships between individuals and government will help not only legal thinkers but every person to reason toward justice.
Using history and literature to explore the complex issues of individual and group rights, Law and the Company We Keep is the first sustained account of the presence and importance of groups in our legal culture. It confronts central questions about the multiple roles of culture and symbol in defining our groups, and through them, our lives.
As headlines about cash-rich corporations filing for Chapter 11 are appearing more and more frequently, bankruptcy law has come under sharp public scrutiny. Critics feel that irresponsible corporations and individuals may be using the law unfairly. In this clearly written book, legal scholar Thomas H. Jackson identifies the underlying principles of bankruptcy law and develops an economic/psychological analysis of its main problems—a framework that permits him to view the field as a whole rather than as a collection of disparate policies and historical artifacts.
Dealing first with the use of bankruptcy to adjust creditors’ relations among themselves, Jackson shows that individual creditors will attempt to recover as much of the bankrupt firm’s assets as they can. But to maximize the value of the assets, the creditors must act collectively to apportion them according to the priority of entitlements that existed before the bankruptcy.
This is a claim with sweeping implications, and Jackson not only supports it convincingly but examines in some detail the various consequences of adopting it. He takes up several of the most controversial issues in bankruptcy policy today, including the treatment in bankruptcy of collective labor agreements and the recognition of unmatured tort claims of the kind involved in the Manville bankruptcy. His thoughtful analysis arrives at results that are consistent with his economic framework but that espouse no single political ideology.
Turning then to the right of a financial fresh start for debtors who are not firms but human beings, Jackson thaws on recent ideas in psychology to explain why the right exists and why it cannot be waived.
He thus provides a comprehensive scheme for evaluating the principal features of the existing bankruptcy system and for comparing them with past and future alternatives. The book will be of keen interest not only to the specialist but also to those who want to know more about the institution of bankruptcy and its place in our legal system.
While the American legal system has played an important role in shaping the field of bioethics, Law and Bioethics is the first book on the subject designed to be accessible to readers with little or no legal background. Detailing how the legal analysis of an issue in bioethics often differs from the "ethical" analysis, the book covers such topics as abortion, surrogacy, cloning, informed consent, malpractice, refusal of care, and organ transplantation.
Structured like a legal casebook, Law and Bioethics includes the text of almost all the landmark cases that have shaped bioethics. Jerry Menikoff offers commentary on each of these cases, as well as a lucid introduction to the U.S. legal system, explaining federalism and underlying common law concepts. Students and professionals in medicine and public health, as well as specialists in bioethics, will find the book a valuable resource.
Are you alive? What makes you so sure? Most people believe this question has a clear answer—that some law defines our status as living (or not) for all purposes. But they are dead wrong. In this pioneering study, Elizabeth Price Foley examines the many, and surprisingly ambiguous, legal definitions of what counts as human life and death.
Foley reveals that “not being dead” is not necessarily the same as being alive, in the eyes of the law. People, pre-viable fetuses, and post-viable fetuses have different sets of legal rights, which explains the law's seemingly inconsistent approach to stem cell research, in vitro fertilization, frozen embryos, in utero embryos, contraception, abortion, homicide, and wrongful death.
In a detailed analysis that is sure to be controversial, Foley shows how the need for more organ transplants and the need to conserve health care resources are exerting steady pressure to expand the legal definition of death. As a result, death is being declared faster than ever before. The "right to die," Foley worries, may be morphing slowly into an obligation to die.
Foley’s balanced, accessible chapters explore the most contentious legal issues of our time—including cryogenics, feticide, abortion, physician-assisted suicide, brain death, vegetative and minimally conscious states, informed consent, and advance directives—across constitutional, contract, tort, property, and criminal law. Ultimately, she suggests, the inconsistencies and ambiguities in U.S. laws governing life and death may be culturally, and perhaps even psychologically, necessary for an enormous and diverse country like ours.
The world of sports seems entwined with lawsuits. This is so, Paul Weiler explains, because of two characteristics intrinsic to all competitive sports. First, sporting contests lose their drama if the competition becomes too lopsided. Second, the winning athletes and teams usually take the "lion's share" of both fan attention and spending. So interest in second-rate teams and in second-rate leagues rapidly wanes, leaving one dominant league with monopoly power.
The ideal of evenly balanced sporting contests is continually challenged by economic, social, and technological forces. Consequently, Weiler argues, the law is essential to level the playing field for players, owners, and ultimately fans and taxpayers. For example, he shows why players' use of performance-enhancing drugs, even legal ones, should be treated as a more serious offense than, say, use of cocaine. He also explains why proposals to break up dominant leagues and create new ones will not work, and thus why both union representation of players and legal protection for fans--and taxpayers--are necessary.
Using well-known incidents--and supplying little-known facts--Weiler analyzes a wide array of moral and economic issues that arise in all competitive sports. He tells us, for example, how Commissioner Bud Selig should respond to Pete Rose's quest for admission to the Hall of Fame; what kind of settlement will allow baseball players and owners to avoid a replay of their past labor battles; and how our political leaders should address the recent wave of taxpayer-built stadiums.
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