December 9, 2011
PLANNING AHEAD FOR WINTER: SUGGESTED READING FOR LAW STUDENTS
Joanna L. Grossman & Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America (Princeton & Oxford: Princeton U. Press, 2011) (From the bookjacket: "Inside the Castle is a comprehensive social history of twentieth-century family law in the United States. [The authors] show how vast, oceanic changes in society have reshaped and reconstituted the American family. Women and children have gained rights and powers, and novel forms of family life have emerged. The family has more or less dissolved into a collection of independent individuals with own wants, desires, and goals. Modern family law, as always, reflects the brute social and cultural facts of family life.").
Leo Katz, Why the Law Is So Perverse (Chicago & London: U. of Chicago Press, 2011) ("In this book I seek to explain why the law is full of perversities . . . : strange and counterintuitive features that one cannot justify but that one would not want to eliminate either. They all have, I will try to show you, a common cause." "The cause turns out to be not, as one might have thought, historical or political or psychological but, rather logical in nature. Creating laws that do not suffer from such problems turns out to be logically impossible. Oliver Wendell Holmes famously said that the life of the law is experience, not logic. He was more wrong than right. Historical experience surely counts. But some of the most fundamental as well as fundamentally strange features of the law are rooted in logic rather than experience." Id. at 2. "The exploitation of loopholes is in fact the lawyer's daily bread, which makes it all the more strange that both lawyers and nonlawyers profess such outrage about it. Actually, the point should probably be put the other way around: what is strange is that, given the contempt in which loophole exploitation is held, it is nevertheless central to legal practice. What can a profession whose main preoccupation consists of this kind of activity say for itself?  Specifically, I intend to answer three questions about loopholes: First, why is the law so riddled with them? Second, why, once detected, do they usually go uncorrected? And finally, should lawyers be reluctant to exploit them, or should they feel free to?" Id. at 73.).
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University press of Kansas, 1985).
Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (Chicago & London: U. of Chicago Press, 2011) ("[T]his book will not address the question of whether swaps are good or bad, or how much regulation of the swap markets there should be. In fact, the premise of the book is that the quantitative metric deployed by all sides in the policy debate--how much government regulation is enough, how much is too much--misses what is most interesting and perhaps most important to understand about regulatory governance, that is its qualitative features, The project of this nook is to ask, what are the qualities of particular aspects of legal knowledge that give it resilience, and legitimacy, in particular contexts? The project makes a case for a more careful understanding o the many unnoticed aspects of the rule of law, This book presents new theory of law and markets, then, but it is purposely "theory close to the ground'--it builds up its analytical categories at close proximity to those of market and regulatory practice and it does so inductively rather than deductively." Id at 14.).
David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton & Oxford: Princeton U. Press, 2010) ("The theme of this book is that modern constitutional review cannot always be adequately understood if seen through the traditional categories of the separation of powers. Constitutional courts do more than can be fitted into the domain allowed to courts exercising the judicial function. Much of what they do in what I call 'transforming societies' involves spreading the values set out in the constitution throughout their state and society. Indeed, their idea of what a constitution is does not always fit well with the orthodox idea of a liberal constitution. I try to show that constitutional judges often come near to being applied political theorists, carrying out a quite new type of political function." Id at 1. Robertson looks at constitutional review in Germany, Eastern Europe, France, Canada, South Africa and, of course, the United States.).
Robin West, Normative Jurisprudence: An Introduction (Cambridge Introduction to Philosophy and Law) (Cambridge: Cambridge U. Press, 2011) ("Lawyers, judges, legal scholars, and law students--collectively, the legal profession--all, at various times, criticize, pan, praise, or laud laws. Thus, lawyers are inclined to say, in any number of formal and informal context, 'this law is a good law (or a bad law)' or 'this regulation is a godsend (or a calamity)'; 'that piece of legislation is a breach of trust (or an act of food faith)'; t' that legal regime, even, is a boom (or a bust) for mankind.' How do we do that? What is it that lawyers know, if anything, about law, society, or political morality that informs their nonadversarial critical work? . . . Knowledge of the law that exists cannot alone generate the basis of our conclusions regarding the law that ought to be--although it is surely true, as countless scholars have pointed out for the past one hundred years, that our judgments regarding the aw that ought to be influence out understanding of the law that is." Id. at 1. "So what fills the gap from the legal is to the legal ought for the legal critics?. . . What is the justice we rightly demand of law?" Id. at 1-2. "If there is a field of study that could profitably ask questions about our normative framework for evaluating, criticizing, praising or panning law, it should be jurisprudence--both analytic jurisprudence, which might as what we mean by justice, or the good, against which we evaluate law, and critical jurisprudence, which might ask how we should, and how we can, sufficiently distance ourselves fro the profession in which we participate, so as to better criticize our deepest and most defining legal commitments." Id at 2. "The overriding purpose of this book is to explore the reasons that each of the three major jurisprudential traditions of North American legal theory--natural law, legal positivism, and critical legal theory--has abandoned normative inquiry and to urge that we change of course." Id. at 3. Though it is certainly beyond the scope of West's book, a lurking unasked question is why legal education has, with an increasingly rare exception, abandoned teaching (or exposing their) students to jurisprudence. Obviously, in the current fad of the 'practice-ready'-approach to legal education, jurisprudence is increasingly deemed pretty much irrelevant.).
Morton White, The Philosophy of the American Revolution (New York: Oxford U. Press, 1978) (From the bookjacket: "Self-evident truth . . . unalienable rights . . . the pursuit of happiness . . . These terms are familiar to every schoolchild, but what do they really mean? Now for the first time a scholar who is both a philosopher and a historian lucidly analyzes the main ideas that guided the American revolutionaries of 1776. What did they believe, and how did they justify the steps they took? What were the political consequences--actual and possible-- of the Revolutionary philosophy? In answering these questions, this profound work fills a gap in the history of the American Revolution>' "The book illuminates the theory of knowledge (self-evident truth), the metaphysics (the nature or essence of man), the philosophical theology (God's ends for man), and the ethics (natural rights and duties) upon which the Founding Fathers rested their claim to independence. No modern American politician has attempted to apply technical philosophical doctrines, but White shows that Thomas Jefferson Alexander Hamilton, John Adams, and James Wilson certainly did so. Ironically they appealed to self-evident truths which were hardly self-evident to all of the people, and to the essence of man, which was certainly not penetrable by any of the people." 'White notes that they fully acknowledged their failure to invent any new philosophical ideas and that they admitted their dependence on the views of earlier Western philosophers and jurists, For this reason, White carefully describes the ties with other important figures in the history of Western thought. The difficult philosophical statements int he Declaration of Independence and other American writings of the eighteenth century become much more comprehensible when linked with the ideas of philosophers and jurists like Aristotle, Cicero, Aquinas, Hooker, Locke, Pufendorf, and Burlamaqui.").
William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca and London: Cornell U. Press, 1977).