The Canon of American Legal Thought / Edition 1

by David Kennedy, William W. Fisher III

Overview

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 clichés of everyday legal argument were originally formulated.

Product Details

ISBN-13:	9780691120003
Publisher:	Princeton University Press
Publication date:	11/26/2006
Edition description:	New Edition
Pages:	936
Product dimensions:	7.00(w) x 10.00(h) x (d)

About the Author

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

Part I: Attacking the Old Order: 1900-1940

Oliver Wendell Holmes, "The Path of the Law," 10 Harvard Law Review 457 (1897) 19

Wesley Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 Yale Law Journal 16 (1913) 45

Robert Hale, "Coercion and Distribution in a Supposedly Noncoercive State," 38 Political Science Quarterly 470 (1923) 83

John Dewey, "Logical Method and Law," 10 Cornell Law Quarterly 17 (1924) 111

Karl Llewellyn, "Some Realism About Realism?Responding to Dean Pound," 44 Harvard Law Review 1222 (1931) 131

Felix Cohen, "Transcendental Nonsense and the Functional Approach," 35 Columbia Law Review 809 (1935) 163

Part II: A New Order: The Legal Process, Policy, and Principle: 1940-1960

Lon L. Fuller, "Consideration and Form," 41 Columbia Law Review 799 (1941) 207

Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, Problem No. 1 (unpublished manuscript, 1958) 241

Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harvard Law Review 1 (1959) 311

Part III: The Emergence of Eclecticism: 1960-2000

Policy and Economics Ronald H. Coase, "The Problem of Social Cost," 3 Journal of Law and Economics 1 (1960) 353

Guido Calabresi and Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,"
85 Harvard Law Review 1089 (1972) 401

The Law and Society Movement

Stewart Macaulay, "Non-Contractual Relations in Business: A Preliminary Study," 28 American Sociological Review 55 (1963) 445

Marc Galanter, "Why the'Haves? Come Out Ahead: Speculations on the Limits of Legal Change," 9 Law and Society Review 95 (1974) 481

Liberalism: Interpretation and the Role of the Judge Ronald Dworkin, "Hard Cases," 88 Harvard Law Review 1057 (1975) 549

Abram Chayes, "The Role of the Judge in Public Law Litigation," 89 Harvard Law Review 1281 (1976) 603

Critical Legal Studies

Duncan Kennedy, "Form and Substance in Private Law Adjudication," 88 Harvard Law Review 1685 (1976) 647

Liberalism: Legal Philosophy and Ethics

Robert Cover, "Violence and the Word," 95 Yale Law Journal 1601 (1986) 733

Frank Michelman, "Law's Republic," 97 Yale Law Journal 1493 (1988) 777

Identity Politics

Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State: An Agenda for Theory," 7:3 Signs: Journal of Women in Culture and Society 515 (1982) 829

Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State:
Toward a Feminist Jurisprudence," 8 Signs: Journal of Women, Culture, and Society 635 (1983) 869

Kimberl? Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds., "Introduction," Critical Race Theory: The Key Writings that Formed the Movement, The New Press,
New York, 1996 at xiii-xxxii 887

What People are Saying About This

Gordon

Legal thought is a much broader category, and one of more general interest to law students, than jurisprudence, but until now there has been no collection available to readers. By bringing together these classic pieces exemplifying the main themes and schools of modern American legal thought, this book will be extremely useful to any teacher of the subject.
— Robert W. Gordon, Yale Law School, editor of "The Legacy of Oliver Wendell Holmes, Jr."

From the Publisher

"Legal thought is a much broader category, and one of more general interest to law students, than jurisprudence, but until now there has been no collection available to readers. By bringing together these classic pieces exemplifying the main themes and schools of modern American legal thought, this book will be extremely useful to any teacher of the subject."—Robert W. Gordon, Yale Law School, editor of The Legacy of Oliver Wendell Holmes, Jr.

Editorial Reviews

"[This book] is invaluable evidence that the study of law and the distinctive arguments and claims characteristic to legal practice and academia, are worthy of study as an autonomous discipline. In an age where the legal academy is increasingly moving toward a 'law and —' model of scholarship, this weighty reminder that the law warrants its own study could not be more timely."—-Aziz Huq, New York Law Journal

"[W]hile this specialized and sophisticated compendium is not light summer reading, it is for the interested scholar with some legal background who wants a survey of contemporary American legal thought and the grounding to take that interest further."—-George Conyne, American Studies

"There is much in this compilation to admire, and it would actually make sense to make every American law professor . . . read and ponder these pieces."—-Stephen B. Presser, The American Lawyer

From the Publisher

"The editors provide an introduction to each article, making the sophisticated scholarship more accessible and highlighting connections among articles whose subjects range from contracts to republican theory. While not everyone will agree with the editors' selections, Professors David Kennedy and William Fisher have undeniably performed a valuable service to scholars and students and have provided an important baseline for understanding legal thought."

Harvard Law Review

There is much in this compilation to admire, and it would actually make sense to make every American law professor . . . read and ponder these pieces.

The American Lawyer - Stephen B. Presser

[W]hile this specialized and sophisticated compendium is not light summer reading, it is for the interested scholar with some legal background who wants a survey of contemporary American legal thought and the grounding to take that interest further.

American Studies - George Conyne

[This book] is invaluable evidence that the study of law and the distinctive arguments and claims characteristic to legal practice and academia, are worthy of study as an autonomous discipline. In an age where the legal academy is increasingly moving toward a 'law and —' model of scholarship, this weighty reminder that the law warrants its own study could not be more timely.

New York Law Journal - Aziz Huq

There is much in this compilation to admire, and it would actually make sense to make every American law professor . . . read and ponder these pieces.
— Stephen B. Presser

The American Lawyer

[W]hile this specialized and sophisticated compendium is not light summer reading, it is for the interested scholar with some legal background who wants a survey of contemporary American legal thought and the grounding to take that interest further.
— George Conyne

American Studies

[This book] is invaluable evidence that the study of law and the distinctive arguments and claims characteristic to legal practice and academia, are worthy of study as an autonomous discipline. In an age where the legal academy is increasingly moving toward a 'law and —' model of scholarship, this weighty reminder that the law warrants its own study could not be more timely.
— Aziz Huq

New York Law Journal