The Canon of American Legal Thought

by Kennedy, David; Fisher, William W., III; Mayhew, Doug

• ISBN13: 9780691120003
• ISBN10: 0691120005
• Format: Paperback
• Copyright: 2006-11-06
• Publisher: Princeton Univ Pr

Summary

This anthology presents, for the first time, full texts of the twenty most important works of American legal thought since 1890. Drawing on a course the editors teach at Harvard Law School, the book traces the rise and evolution of a distinctly American form of legal reasoning. These are the articles that have made these authors--from Oliver Wendell Holmes, Jr., to Ronald Coase, from Ronald Dworkin to Catherine MacKinnon--among the most recognized names in American legal history. These authors proposed answers to the classic question: "What does it mean to think like a lawyer--an American lawyer?" Their answers differed, but taken together they form a powerful brief for the existence of a distinct and powerful style of reasoning--and of rulership. The legal mind is as often critical as constructive, however, and these texts form a canon of critical thinking, a toolbox for resisting and unravelling the arguments of the best legal minds. Each article is preceded by a short introduction highlighting the article's main ideas and situating it in the context of its author's broader intellectual projects, the scholarly debates of his or her time, and the reception the article received. Law students and their teachers will benefit from seeing these classic writings, in full, in the context of their original development. For lawyers, the collection will take them back to their best days in law school. All readers will be struck by the richness, the subtlety, and the sophistication with which so many of what have become the clicheacute;s of everyday legal argument were originally formulated.

Author Biography

David Kennedy is Manley O. Hudson Professor of Law and Director of the European Law Research Center at Harvard Law School. His books include "The Dark Sides of Virtue" and "Of War and Law"(forthcoming) (both Princeton). William W. Fisher III is Hale and Dorr Professor of Intellectual Property Law and Director of the Berkman Center for Internet & Society at Harvard Law School. His most recent book is "Promises to Keep: Technology, Law, and the Future of Entertainment".

Table of Contents

Preface	ix
Introduction	1	(18)
Part I: Attacking the Old Order: 1900--1940
``The Path of the Law,'' 10 Harvard Law Review 457 (1897)	19	(26)
Oliver Wendell Holmes
``Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,'' 23 Yale Law Journal 16 (1913)	45	(38)
Wesley Hohfeld
``Coercion and Distribution in a Supposedly Noncoercive State,'' 38 Political Science Quarterly 470 (1923)	83	(28)
Robert Hale
``Logical Method and Law,'' 10 Cornell Law Quarterly 17 (1924)	111	(20)
John Dewey
``Some Realism About Realism---Responding to Dean Pound,'' 44 Harvard Law Review 1222 (1931)	131	(32)
Karl Llewellyn
``Transcendental Nonsense and the Functional Approach,'' 35 Columbia Law Review 809 (1935)	163	(44)
Felix Cohen
Part II: A New Order: The Legal Process, Policy, and Principle: 1940--1960
``Consideration and Form,'' 41 Columbia Law Review 799 (1941)	207	(34)
Lon L. Fuller
The Legal Process: Basic Problems in the Making and Application of Law, Problem No. 1 (unpublished manuscript, 1958)	241	(70)
Henry M. Hart, Jr.
Albert M. Sacks
``Toward Neutral Principles of Constitutional Law,'' 73 Harvard Law Review 1 (1959)	311	(42)
Herbert Wechsler
Part III: The Emergence of Eclecticism: 1960--2000
Policy and Economics
``The Problem of Social Cost,'' 3 Journal of Law and Economics 1 (1960)	353	(48)
Ronald H. Coase
``Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,'' 85 Harvard Law Review 1089 (1972)	401	(44)
Guido Calabresi
Douglas Melamed
The Law and Society Movement
``Non-Contractual Relations in Business: A Preliminary Study,'' 28 American Sociological Review 55 (1963)	445	(36)
Stewart Macaulay
``Why the `Haves' Come Out Ahead: Speculations on the Limits of Legal Change,'' 9 Law and Society Review 95 (1974)	481	(68)
Marc Galanter
Liberalism: Interpretation and the Role of the Judge
``Hard Cases,'' 88 Harvard Law Review 1057 (1975)	549	(54)
Ronald Dworkin
``The Role of the Judge in Public Law Litigation,'' 89 Harvard Law Review 1281 (1976)	603	(44)
Abram Chayes
Critical Legal Studies
``Form and Substance in Private Law Adjudication,'' 88 Harvard Law Review 1685 (1976)	647	(86)
Duncan Kennedy
Liberalism: Legal Philosophy and Ethics
``Violence and the Word,'' 95 Yale Law Journal 1601 (1986)	733	(44)
Robert Cover
``Law's Republic,'' 97 Yale Law Journal 1493 (1988)	777	(52)
Frank Michelman
Identity Politics
``Feminism, Marxism, Method, and the State: An Agenda for Theory,'' 7:3 Signs: Journal of Women in Culture and Society 515 (1982)	829	(40)
Catharine A. MacKinnon
``Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence,'' 8 Signs: Journal of Women, Culture, and Society 635 (1983)	869	(18)
Catharine A. MacKinnon
``Introduction,'' Critical Race Theory: The Key Writings that Formed the Movement, The New Press, New York, 1996 at xiii-xxxii	887
Kimberle Crenshaw
Neil Gotanda
Gary Peller
Kendall Thomas