Belief in the rule of law characterizes our society, our political order, and even our identity as citizens. The Cultural Study of Law is the first full examination of what it means to conduct a modern intellectual inquiry into the culture of law. Paul Kahn outlines the tools necessary for such an inquiry by analyzing the concepts of time, space, citizen, judge, sovereignty, and theory within the culture of law's rule. Charting the way for the development of a new intellectual discipline, Paul Kahn advocates an approach that stands outside law's normative framework and looks at law as a way of life rather than as a set of rules.
"Professor Kahn's perspective is neat and alluring: We need a form of legal scholarship released from the project of reform so that we can better understand who and what we are. The new discipline should study 'not legal rules, but the imagination as it constructs a world of legal meaning.' . . . [C]oncise, good reading, and recommended." —New York Law Journal
Judges and legal scholars talk past one another, if they have any conversation at all. Academics criticize judicial decisions in theoretical terms, which leads many judges to dismiss academic discourse as divorced from reality. Richard Posner reflects on the causes and consequences of this widening gap and what can be done to close it.
Failing Law Schools
Brian Z. Tamanaha University of Chicago Press, 2012 Library of Congress KF272.T353 2012 | Dewey Decimal 340.071173
On the surface, law schools today are thriving. Enrollments are on the rise, and their resources are often the envy of every other university department. Law professors are among the highest paid and play key roles as public intellectuals, advisers, and government officials. Yet behind the flourishing facade, law schools are failing abjectly. Recent front-page stories have detailed widespread dubious practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession.
Addressing all these problems and more in a ringing critique is renowned legal scholar Brian Z. Tamanaha. Piece by piece, Tamanaha lays out the how and why of the crisis and the likely consequences if the current trend continues. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The average law school graduate’s debt is around $100,000—the highest it has ever been—while the legal job market is the worst in decades, with the scarce jobs offering starting salaries well below what is needed to handle such a debt load. At the heart of the problem, Tamanaha argues, are the economic demands and competitive pressures on law schools—driven by competition over U.S. News and World Report ranking. When paired with a lack of regulatory oversight, the work environment of professors, the limited information available to prospective students, and loan-based tuition financing, the result is a system that is fundamentally unsustainable.
Growing concern with the crisis in legal education has led to high-profile coverage in the Wall Street Journal and the New York Times, and many observers expect it soon will be the focus of congressional scrutiny. Bringing to the table his years of experience from within the legal academy, Tamanaha has provided the perfect resource for assessing what’s wrong with law schools and figuring out how to fix them.
In this collection of essays, James Boyd White continues his work in the rhetorical and literary analysis of law, seeing it as a system for the creation of social meaning. White's focus is on the intellectual and ethical possibilities of law, based on the view that law is not merely a logical enterprise, nor a mere matter of politics and power, but rather an activity of the whole mind, including its imaginative and affective capacities.
The essays here are united by two basic themes. First, the essays suggest that law can usefully be regarded not only as a set of rules designed to produce results in the material world, as it usually is regarded, but also as an imaginative and intellectual activity that has as its end the claim of meaning for human experience, both individual and collective. Second, they argue that education, including in the law, works by the constant modification of expectation by experience.
White claims that as we grow, whether as individuals or as a community, we constantly shape our expectations to our experiences. This happens with particular force and clarity in the law, which seeks to create both a certain set of expectations--this is how it works as a system of regulation--and a series of occasions and methods for their revision. White's interest is in the way these understandings can affect legal teaching, practice, and criticism.
The essays in this book examine such topics as the nature of legal education; the possibilities for writing in the law for both judges and lawyers; the relation between the practice of making and claiming meaning as it works in the law and in literatures more usually though of as imaginative, such as poetry or drama; the ways in which the law talks, and ought to talk, about business corporations, religion, and individual judgments; and the ethical possibilities of the practice of law when it is conceived of as a field for the making of meaning.
From Expectation to Experience will be of interest to lawyers, legal scholars, as well as students of law, law and literature, and ethics and literature.
James Boyd White is Hart Wright Professor of Law, Professor of English, and Adjunct Professor of Classical Studies, University of Michigan.
Despite the growing number ofAsian American and Latino/a law students, many panethnic students still feel as if they do not belong in this elite microcosm, which reflects the racial inequalities in mainstream American society. While in law school, these students—often from immigrant families, and often the first to go to college—have to fight against racialized and gendered stereotypes. In Incidental Racialization, Diana Pan rigorously explores how systemic inequalities are produced and sustained in law schools.
Through interviews with more than 100 law students and participant observations at two law schools, Pan examines how racialization happens alongside professional socialization. She investigates how panethnic students negotiate their identities, race, and gender in an institutional context. She also considers how their lived experiences factor into their student organization association choices and career paths.
Incidental Racialization sheds light on how race operates in a law school setting for both students of color and in the minds of white students. It also provides broader insights regarding racial inequalities in society in general.
A history of Harvard Law School in the twentieth century, focusing on the school’s precipitous decline prior to 1945 and its dramatic postwar resurgence amid national crises and internal discord.
By the late nineteenth century, Harvard Law School had transformed legal education and become the preeminent professional school in the nation. But in the early 1900s, HLS came to the brink of financial failure and lagged its peers in scholarly innovation. It also honed an aggressive intellectual culture famously described by Learned Hand: “In the universe of truth, they lived by the sword. They asked no quarter of absolutes, and they gave none.” After World War II, however, HLS roared back. In this magisterial study, Bruce Kimball and Daniel Coquillette chronicle the school’s near collapse and dramatic resurgence across the twentieth century.
The school’s struggles resulted in part from a debilitating cycle of tuition dependence, which deepened through the 1940s, as well as the suicides of two deans and the dalliance of another with the Nazi regime. HLS stubbornly resisted the admission of women, Jews, and African Americans, and fell behind the trend toward legal realism. But in the postwar years, under Dean Erwin Griswold, the school’s resurgence began, and Harvard Law would produce such major political and legal figures as Chief Justice John Roberts, Justice Elena Kagan, and President Barack Obama. Even so, the school faced severe crises arising from the civil rights movement, the Vietnam War, Critical Legal Studies, and its failure to enroll and retain people of color and women, including Justice Ruth Bader Ginsburg.
Based on hitherto unavailable sources—including oral histories, personal letters, diaries, and financial records—The Intellectual Sword paints a compelling portrait of the law school widely considered the most influential in the world.
Originally published in 1949, An Introduction to Legal Reasoning is widely acknowledged as a classic text. As its opening sentence states, “This is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the Constitution.” In elegant and lucid prose, Edward H. Levi does just that in a concise manner, providing an intellectual foundation for generations of students as well as general readers.
For this edition, the book includes a substantial new foreword by leading contemporary legal scholar Frederick Schauer that helpfully places this foundational book into its historical and legal contexts, explaining its continuing value and relevance to understanding the role of analogical reasoning in the law. This volume will continue to be of great value to students of logic, ethics, and political philosophy, as well as to members of the legal profession and everyone concerned with problems of government and jurisprudence.
Lawyers and the legal profession have become
scapegoats for many of the problems of our
age. In The Lawyer Myth: A Defense of the
American Legal Profession, Rennard Strickland and
Frank T. Read look behind current antilawyer media
images to explore the historical role of lawyers as a
balancing force in times of social, economic, and political change. One source of this disjunction of perception and reality, they find, is that American society has lost touch with the need for the lawyer’s skill and has come to blame unrelated social problems on the legal profession. This highly personal and impassioned book is their defense of lawyers and the rule of law in the United States. The Lawyer Myth confronts the hypocrisy of critics from both the right and
the left who attempt to exploit popular misperceptions about lawyers and
judges to further their own social and political agendas. By revealing the facts and reasoning behind the decisions in such cases as the infamous McDonald’s coffee spill, the authors provide a clear explanation of the operation of the law while addressing misconceptions about the number of lawsuits, runaway jury verdicts, and legal “technicalities” that turn criminals out on the street.
Acknowledging that no system is perfect, the authors propose a slate of reforms for the bar, the judiciary, and law schools that will enable today’s lawyers—and tomorrow’s—to live up to the noble potential of their profession. Whether one thinks of lawyers as keepers of the springs of democracy, foot soldiers of the Constitution, architects and carpenters of commerce, umpires and field levelers, healers of the body politic, or simply bridge builders, The Lawyer Myth reminds us that lawyers are essential to American democracy.
Lawyers today are in a moral crisis. The popular perception of the lawyer, both within the legal community and beyond, is no longer the Abe Lincoln of American mythology, but is often a greedy, cynical manipulator of access and power. In The Lawyer's Myth, Walter Bennett goes beyond the caricatures to explore the deeper causes of why lawyers are losing their profession and what it will take to bring it back.
Bennett draws on his experience as a lawyer, judge, and law teacher, as well as upon oral histories of lawyers and judges, in his exploration of how and why the legal profession has lost its ennobling mythology. Effectively using examples from history, philosophy, psychology, mythology, and literature, Bennett shows that the loss of professionalism is more than merely the emergence of win-at-all-cost strategies and a scramble for personal wealth. It is something more profound—a loss of professional community and soul. Bennett identifies the old heroic myths of American lawyers and shows how they informed the values of professionalism through the middle of the last century. He shows why, in our more diverse society, those myths are inadequate guides for today's lawyers. And he also discusses the profession's agony over its trickster image and demonstrates how that archetype is not only a psychological reality, but a necessary component of a vibrant professional mythology for lawyers.
At the heart of Bennett's eloquently written book is a call to reinvigorate the legal professional community. To do this, lawyers must revive their creative capacities and develop a meaningful, professional mythology—one based on a deeper understanding of professionalism and a broader, more compassionate ideal of justice.
Victoria Nourse argues that lawyers must be educated on the basic procedures that define how Congress operates today. Lawmaking creates winners and losers. If lawyers and judges do not understand this, they may embrace the meanings of those who opposed legislation, turning legislative losers into judicial winners and standing democracy on its head.
In Neglected Policies, Ira L. Strauber challenges scholars and critics of constitutional jurisprudence to think differently about the Constitution and its interpretation. He argues that important aspects of law, policies, and politics are neglected because legal formalisms, philosophical theories, the reasoning of litigators and judges, and even the role of the courts are too often taken for granted. Strauber advocates an alternative approach to thinking about the legal and moral abstractions ordinarily used in constitutional decision making. His approach, which he calls “agnostic skepticism,” interrogates all received jurisprudential notions, abandoning the search for “right answers” to legal questions. It demands that attention be paid to the context-specific, circumstantial social facts relevant to given controversies and requires a habit of mind at home with relativism.
Strauber situates agnostic skepticism within contemporary legal thought, explaining how it draws upon sociological jurisprudence, legal realism, and critical legal studies. Through studies of cases involving pornography, adoption custody battles, flag burning, federalism, and environmental politics, he demonstrates how agnostic skepticism applies to constitutional issues. Strauber contends that training in skeptical critique will enable a new kind of civic education and culture—one in which citizens are increasingly tolerant of the ambiguities and contradictions inherent in the law and politics of a pluralistic society.
Using insights from the social sciences to examine the ways constitutional cases are studied and taught, Neglected Policies will interest scholars of jurisprudence, political science, and the sociology of law.
Reflections on Judging
Richard A. Posner Harvard University Press, 2013 Library of Congress KF9050.P55 2013 | Dewey Decimal 347.7324092
For Richard Posner, legal formalism and formalist judges--notably Antonin Scalia--present the main obstacles to coping with the dizzying pace of technological advance. Posner calls for legal realism--gathering facts, considering context, and reaching a sensible conclusion that inflicts little collateral damage on other areas of the law.
Many law students feel that they are learning a new language during their first year of law school. For those students who are not native English speakers this process can be even more overwhelming. Strategies for Legal Case Reading and Vocabulary Development was written for just these students. The goal of the text is to help students develop the case reading and vocabulary strategies they will need to compete and succeed in an American law school.
Strategies for Legal Case Reading and Vocabulary Development begins with an overview of the American legal system and relevant research and guidelines relating to case reading. The book is divided into sections on common law, statutory law, and constitutional law. Approximately twenty cases (some abridged) and eight readings are included in the text. Questions for Discussion follow each case to help students prepare to actively participate in class case discussions. Additional features include hypotheticals (often posed by law professors), vocabulary tasks, and short writing assignments.
This pioneering book is the first to identify the methods, strategies, and personal traits of law professors whose students achieve exceptional learning. Modeling good behavior through clear, exacting standards and meticulous preparation, these instructors know that little things also count--starting on time, learning names, responding to emails.