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Wednesday, September 27, 2006

Canons of Legal Thought and Methodology: Structuring a Law Grad Doctoral Seminar

This Fall, the Graduate program at Harvard Law School introduced for the first time a first year doctoral Seminar in Legal Theory and Methodology. The idea is to provide students who are just beginning their dissertation work foundations in canons of legal thought. The structure, organization and content of the seminar has generated quite a bit of debate among graduate students and participating faculty.  (A copy of the syllabus is available here, and is reprinted below.)

The seminar creators describe the selection of the readings as following: “The law is one, and perhaps the primary, terrain where two main projects of modern social thought intersect: 1)  the positive (descriptive-interpretive-explanatory-predictive) enterprise of the social sciences (sociology, anthropology, history, social psychology, political science and economics) of understanding, explaining, and/or predicting social phenomena; and 2) the normative enterprise of ethical and political philosophy of evaluating (justifying or criticizing) and/or prescribing social action. This conception of law and legal scholarship is, of course, one among many possibilities.  In particular, it is in some tension with rival perspectives that focus in varying ways on the internal form, autonomy, or systematicity of law.  Among the major approaches of this sort would be analytical jurisprudence or “philosophy of law,” law as aesthetics/humanities, and internalist-doctrinal legal scholarship.  The themes and readings would, no doubt, have been considerably different if one of the perspectives guiding these approaches had been adopted. The readings are structured around the following premise:  In the early twentieth century, a group of American legal scholars, economists, and philosophers (respectively, Legal Realists, Institutional Economists, and Pragmatists) developed three major challenges to contemporary assumptions about law:

(1)   A critique of legal reasoning that pointed out various circularities in common moves of legal reasoning and showed the existence of numerous “gaps, conflicts and ambiguities” when non-circular moves were applied to the formal legal materials (precedents, statutes, constitutional provisions, higher-order concepts, and general policies) that were available to, and formally cited by, judges and other legal reasoners when confronting a fact pattern in a case or legal question (the two critiques, of circularity and of gaps, conflicts, ambiguities, are sometimes referred to as strong and weak “abuse of deduction” critiques);

(2)   A critique of many conceptual or formal propositions (not just of law “on the books,” but also “arm-chair” philosophy and abstract economics) as a-contextual, and inadequate in light of empirical knowledge; and

(3)   A social theory that combined the first two sets of critiques with insights into the socio-legal shaping of the “private sphere” to culminate in a critique of the following distinctions central to liberal political, economic, and philosophical thought:  public/private, state/market, and act/omission (as well as, some have argued, kernels of methodological critiques of strong observer/participant, fact/value and observation/theory distinctions).

The guiding idea for the seminar is that American legal thought today can be seen as responding, in various ways (1) to the insights and challenges of the Legal Realists on the one hand, and  (2) to parallel or divergent developments in various adjacent disciplines (key disciplines being neoclassical, behavioral, and new institutional economics, post-positivist analytical philosophy, liberal political philosophy, critical theory, and intellectual history), on the other.  Thus, each of the various “schools” of legal thought that remain relatively dominant today can be seen to involve:

(1)   A theory of law, understood here primarily in the senses either of:

a.       an analytical (conceptual and perhaps empirical) theory of what is “law”; or

b.      a theory of how judges do and should decide cases, meaning therefore both

    i.       a positive-interpretive account of legal reasoning; and

    ii. a normative theory of legal argument and decision, one usually backing into a political philosophy (that typically centers on analysis of the office of the judiciary in an at least formally democratic society, and thus that also implies a sociology);

(2)   A background social theory that addresses two different questions:
a.       an account of what are the significant social stakes of legal decisions and norms; and
b.      a more general social-theoretical framing of the interplay between individual agency (of both the authors and subjects of law) and social contexts. 

Below is the Proposed Syllabus. I would be interested in hearing reactions to its content and structure.


I.  Setting the Stage: the Legal-Realist Critiques of Legal Reasoning & of     the Public/Private Distinction


Class one: an historical-sociological overview of the intellectual/legal-theoretical aspects of the key themes of Legal Realism
Class two:  an analytical exploration of the key reasoning/analytics of Legal Realism


1a. The Critique of Legal Reasoning as Under-determinate
Holmes, Privilege, Malice & Intent (1894) (c.f. opinion in Vegelahn 1896)
Holmes, The Path of the Law (1897) (c.f. dissent in Lochner 1905)

Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (1913)

Felix Cohen, Transcendental Nonsense and the Functional Approach (1935)
Karl Llewellyn, Leeways of Precedents in The Common Law Tradition (1960)
Karl Llewellyn, Canons on Statutes in The Common Law Tradition (1960)

1b. The Law-in-Action Critique of Law-on-Books
Holmes, The Common Law (1881) (excerpt)

Brandeis brief in Muller v. Oregon (1908)
Roscoe Pound, Liberty of Contract (1909)
Roscoe Pound, Law in Books and Law in Action (1910)

Walter W. Cook, Scientific Method and the Law (1927)
Karl Llewellyn, A Realistic Jurisprudence – The Next Step (1930)
Fuller and Purdue, The Reliance Interest in Contract Damages (1936-1937)

2. The Critique of the Public/Private Distinction
Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State (1923)
Robert Hale, Bargaining, Duress and Liberty (1943)
Morris Cohen, Property and Sovereignty (1927)


II.Another Stage: Analytical Jurisprudence or the “Philosophy of Law” and Its Relation to Legal Realism and to Social Theory

Class three:

3a. Philosophy of Law: the “What is (the “Nature” of) Law” debate
Legal Positivism:
            HLA Hart, The Concept of Law (1961) (excerpts)
Joseph Raz, The Authority of Law (1979) (excerpts)
    Or_____, Practical Reason and Norms (1994) (excerpts)
Natural Law:
John Finnis, Natural Law and Natural Rights (1980) (excerpts)
Dworkin’s “Third” theory:
            Ronald Dworkin, Law’s Empire(1986) (excerpts)


Class four:

3b. The Relationship of Analytical Jurisprudence to Legal Realism and to Social Theory
Brian Leiter, Realism, Hard Positivism, and the Limits of Conceptual Analysis (1998)   
    Or _____, Legal Realism and Legal Positivism Reconsidered, Ethics (2001)
         _____, Naturalism and Naturalized Jurisprudence (1998)
                                           
Brian Tamanaha, Realistic Socio-Legal Theory (1997) (chs. 2, 4-5)
      Or________, A General Jurisprudence of Law and Society (2001) (chs. 2, 6)


III.The Role of Courts in a Liberal Democracy after Realism

Class five:

Constitutional Rights Adjudication & Liberal Political Theory


4a. Legal Theory: Defenses of Rights-Based Adjudication
Analytical debate (is it possible?):
Ronald Dworkin, Hard Cases (1975)
Or _____, Law’s Empire (1986)
Mark Tushnet, Following the Rules Laid-Down: A Critique of Interpretivism and
Neutral Principles (1983)

Normative debate (is it desirable?):
John Hart Ely, Democracy and Distrust (1980)
Laurence Tribe, Puzzling Persistence of Process-Based Constitutional Theories (1980)
Mark Tushnet, Dia-Tribe (1980)
Ronald Dworkin, Freedom’s Law (1997)
Jeremy Waldron, The Core Case Against Judicial Review (2006)

4b. Background Political Philosophy: Rights and Liberal Justice
John Rawls, A Theory of Justice (1971)
Ronald Dworkin, Taking Rights Seriously (1978)

4c. Background Political Philosophy: Liberal Rights and Republican Democracy
Frank Michelman, Law’s Republic (1987)
Jurgen Habermas, Between Facts and Norms (1996)

Class six:

Public Law Litigation as Institutional Reform


5a. Legal Theory: Judges as Social Reformers
Lewis Sargentich, Complex Enforcement (1978)
Charles F. Sabel and William H. Simon, Destabilization Rights: How Public Law
Litigation Succeeds (2004)

5b. Background Social Theory: Institutional Imagination through Escalating Routine Conflicts into Context-Transforming Opportunities
Roberto Unger, False Necessity (1987)
Or_______, Critical Legal Studies Movement (1982)


IV.Private Ordering and the Rule of Law after Realism

Class seven:

Law and Economics: Efficiency/Welfare as Solution to Common Law Under-determinacy


6a. Positive Analysis:  Legal-Institutional Analytics

Ronald Coase, The Problem of Social Cost (1960)
Guido Calabresi & Douglas Melamed, One View of the Cathedral (1971-1972)
Richard Posner, Economic Analysis of Law ([1973] 2002) (chs. 1 and 2)
(Summary: Polinsky & Shavell, Economic Analysis of Law, Palgrave (2006))
(Critique: Kennedy, Law & Economics From Perspective of CLS, Palgrave (1998))

6b. Positive Analysis:  Economic Theory
Overview:
Louis Kaplow & Steven Shavell, Microeconomics (2004)

Mainstream neoclassical theory of individuals:
Gary Becker, The Economic Approach to Human Behavior (1976) (ch. 1)
Critique:
Mark Kelman, Choice and Utility, Wisconsin L. Rev. (1979)

Mainstream behavioral theory of individuals:
Jolls, Sunstein and Thaler, Behavioral Approach to Law and Economics (1998)
Critique:
Rejoinders by Richard Posner and Mark Kelman in same issue of Stan. L. Rev.
(See generally: Cass Sunstein, ed. Behavioral Law and Economics (2000))

Mainstream theory of institutions:
            Oliver Williamson, The New Institutional Economics, J. Econ. Lit. (2001)
Critique:
            Geoffrey Hodgson, The Approach of Institutional Economics, J. Econ. Lit. (1998)

6b. Normative Analysis:  Prescriptive Theories of Adjudication & Legal Policy
First Wave:
            Richard Posner, The Ethical and Political Basis of the Efficiency Norm in 
                                       Common Law Adjudication, Hofstra Law Review (1980)
            C. Edwin Baker, Starting Points in the Economic Analysis of Law (1980)
            Ronald Dworkin, Is Wealth a Value? (1980)
            Mario Rizzo, The Mirage of Efficiency (1980)
            (See generally: 1980 Hofstra Law Review Symposium)
Second Wave:
Guido Calabresi, The Pointlessness of Pareto (1991)
Kaplow and Shavell, Why Legal System is Less Efficient than Income Tax (1994)
Kaplow and Shavell, Fairness versus Welfare: Notes on the Pareto Principle,
          Preferences and Distributive Justice (2003)
(See critiques by Joe Singer, Arthur Ripstein, Richard Fallon)

Class eight:

Critical Legal Studies: Common Law as Legitimation, Distribution, and/or Denial


7a. Law as Ideological Legitimation/Apology
Robert Gordon, New Approaches to Legal Theory (1982)
Or____, Unfreezing Legal Reality: Critical Approaches to Law (1987)

7b. Legal Reasoning as Anti-Modernist Denial
Duncan Kennedy, Form and Substance in Private Law Adjudication (1976)

7c. The Distributive Stakes of Private Law
Duncan Kennedy, Freedom and Constraint: A Critical Phenomenology (1986)
Duncan Kennedy, The Stakes of Law, or Hale and Foucault! (1991)

7d. Critiques of CLS Indeterminacy Claims1

Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma (1987)
Jules Coleman & Brian Leiter, Determinacy, Objectivity and Authority (1993-4)


V.Law and Society: Studies of Law and Other Social Norms in Action

Class nine:

8a. Limits of Formal Law: Supplements, Substitutes & Replacements of Legal Normativity
Stewart McCauley, Non-Contractual Relations in Business: A Preliminary Study (1963)
Sally Engle Merry, Legal Pluralism (1988)
Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (1991)
Gerald Rosenberg, The Hollow Hope (1991)

8b. Law in Action: The Social Effects of Legal Normativity
Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
Change (1974) (See also 1999 Law & Society Review Symposium)
Lewis Kornhauser & Robert Mnookin, Bargaining in the Shadow of the Law (1979)
Sally Engle Merry, Everyday Understandings of the Law in Working Class America
(1985)
Patrick Ewick & Susan Silbey, The Common Place of Law: Stories from Everyday Life
(1998)
Laura Edelman, A Law and Society Approach to Economic Rationality (2004)

Class ten:

8c. Issues of Theory and Method
Lawrence Friedman, The Law and Society Movement (1986)
Austin Sarat & Susan Silbey, Critical Traditions in Law and Society Research (1987)
David Trubek & John Esser, “Critical Empiricism” in American Legal Studies (1989)
Micheal Heise, The Importance of Being Empirical (1999)


VI.Legal History: Moving beyond Pre-Realist “Lawyers’ History”

Classes eleven and twelve:  discussions of methodology with examples from the history of property law

9. Methodological Overviews
Robert Gordon, Critical Legal Histories (1984) (legal history as social history)
William W. Fisher, Texts and Contexts (1997) (legal history as intellectual history)

10. Competing Approaches: The Case of Property

Social histories of property:
            Lawrence Friedman, A History of American Law (1973)
            Douglass C. North and R.P. Thomas, The Rise of the Western World: A New
            Economic History
(1973)
            Morton Horwitz, The Transformation of American Law, 1780-1860 (1977)

Intellectual histories of property:
Charlie Donahue, The Future of the Concept of Property Predicted from its Past
(1980)
Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The
Development of the Modern Concept of Property (1980)
            Gregory Alexander, Commodity and Propriety (1997)

Synthesis of social and intellectual history:
Morton Horwitz, The Progressive Transformation in the Conception of Property
in Transformation of American Law, 1870-1960 (1992)

1 Other options here include some variation on the following more comprehensive review of this debate:  (1) Response to legal realists’ critique of legal reasoning by Hart (Concept of Law);
(2) Inadequacy of this response as discussed by Altman (Dworkin, Realism & CLS) and Leiter (Legal Realism & Legal Positivism Reconsidered);
(3) Response to legal realists’ critique by Hart & Sacks (Legal Process) and Dworkin (Hard Cases) through ratcheting up to principles and policies (rather than texts, rules, and concepts);
(4) CLS response to Legal Process and Dworkin in Kennedy (Form & Substance) and Tushnet (Following Rules Laid Down);
(5) Dworkin’s response in Law’s Empire;
(6) Non-Dworkinian/non-ratcheting response to CLS interpretation of realism by Solum and Coleman & Leiter (needed in light of inadequacy of Hartian response to legal realism); and
(7) Mature statement of CLS position by Kennedy (Freedom & Constraint) and Tushnet (Defending the Indeterminacy Thesis).

UPDATE: If you've not already done so, please check out (and contribute to) our Research Canons project.  Here is the Research Canons Archive.

Posted by Orly Lobel on September 27, 2006 at 11:15 AM in Life of Law Schools, Research Canons | Permalink

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From the outside looking in, it makes me wish I was attending! I'm sure one could quibble with this or that in the syllabus but I think it's rather well put together. I would, however, find a way to incorporate Dennis Patterson's Law & Truth (19966) in section II; in this same section I would supplement Finnis with Robert P. George's In Defense of Natural Law (1999) or one of several titles by Mark C. Murphy. And I might include more recent work on social norms in section V, for instance, E. Posner's Law and Social Norms (2000), Brennan and Pettit's The Economcy of Esteem (2004), and/or Cristina Bicchieri's The Grammar of Society: The Nature and Dynamic of Social Norms (2006).

No Unger? The times, they are a-changin'

Posted by: Patrick S. O'Donnell | Sep 27, 2006 4:38:01 PM

whoops! Patterson's book appeared in 1996.

Posted by: Patrick S. O'Donnell | Sep 27, 2006 4:40:06 PM

I agree: looks like a lot of fun. Who, I wonder, teaches it? In terms of legal history I wonder if it would make sense to add some of Fisher's other work (like "Ideology and Imagery in the Law of Slavery," 68 Chicago-Kent L Rev 1051 (1993)) and Ken Mack's as well (like "Rethinking Civil Rights Lawyering and Politics in the Era before Brown," 115 Yale LJ 256 (Nov. 2005))--especially, maybe, Mack, since race is suprisingly absent in the syllabus.

Posted by: Al Brophy | Sep 27, 2006 7:57:05 PM

This looks a lot like the syllabus of a course I took with Lew Sargentich when I was an LL.M. there in 1997-98. Is he the prof by chance? I think the name of it at the time (and it was mostly grad students and JDs who wanted to teach) was "Theories About Law" -- as opposed, I think, to "theories of law" which were much less interesting to Lew. One thing that occurs to me (and I second Al's point about race's suspicious absence) is that Patterson -- whose book I have always admired and even suggested be incorporated into the course back then (I had as much pull then as I have now!) -- still seems to be on the outside looking into this canon. Other schools doing courses like this don't seem to do much with his postmodernism. Maybe it is a reflection of his Wittgensteinian perch?

Posted by: Jamie Colburn | Sep 27, 2006 10:58:57 PM

The seminar is designed to be taught by a different prawf each week -- the first session will be led by Morty Horwitz.

Posted by: Orly Lobel | Sep 28, 2006 1:15:11 AM

Jamie, I was also going to comment that the list does sound interesting, but other than the inclusion of Habermas (Beyond Facts and Norms) there is very little in the law and language area - which clearly does include Patterson, as well as Schauer and anyone who has ever referred back to J.L. Austin and performatives.

I'd quibble with the characterization of Dennis Patterson as post-modern, any more than Wittgenstein was post-modern. Patterson's point about rule-following is not, like the post-moderns, that because there is no rule for the application of a rule, anything goes, but that our application of the rules is governed by shared or community or mutual understanding of the point of the rule. Patterson has a skeptical view toward anyone who advocates an insight into law as truth, or truth as law, but he is not a skeptic.

Posted by: Jeff Lipshaw | Sep 28, 2006 9:44:18 AM

This project is still in its early, experimental stages, but now that the syllabus proposal is being circulated, some background may be a good idea. My name is Talha Syed; I am an SJD student at HLS and worked with others on this initiative.
1. The syllabus proposal was put together primarily by myself, in consultation with other SJDs as well as Prof. Charlie Donahue and Jane Fair Bestor (of the HLS Graduate Program), with the support of Bill Alford and Betsy Baker (the Director and Assistant-Dean, respectively, of the Graduate Program). The idea, one many current SJDs strongly supported, was to put together a seminar for first-year doctoral students at HLS, as a sort of common springboard in which all would engage with at least one set of common readings and analytical themes. The guiding substantive ideas are briefly explained in the preface to the readings.
2. I'd like to emphasize that there are two ways in which this is all still quite tentative: (a) first, at the moment the seminar is a pilot – it is not mandatory for first-year SJDs and it is not being taught by a single faculty member, but rather consists of a series of speakers coordinated by Jane Fair Bestor; and (b) second, the syllabus proposal is just that, a proposal of possible readings and themes, which has since been sent out to faculty for feedback.

Posted by: Talha Syed | Sep 28, 2006 12:41:32 PM

Talha,
Thanks for the context. It is most certainly a commendable step and one I can imagine the SJDs very much appreciate! In the interest of the exercise, then, let me underscore the point Al Brophy made on the troubling absence of race/slavery from the syllabus. (The response might be that such is not methodological, but it most certainly is in our history: Rawls wouldn't abet a theory developed in the absence of real particulars -- and neither do good legal theorists. See, e.g., Michael C. Dorf, Create Your Own Constitutional Theory, 87 Cal. L. Rev. 593 (1999).)

Posted by: Jamie Colburn | Sep 30, 2006 11:22:10 PM

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