Beyond The Formalist Realist Divide
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Beyond The Formalist Realist Divide
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Author : Brian Z. Tamanaha
language : en
Publisher: Princeton University Press
Release Date : 2009-10-26
Beyond The Formalist Realist Divide written by Brian Z. Tamanaha and has been published by Princeton University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2009-10-26 with Law categories.
According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide. Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism. Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.
Mechanical Jurisprudence
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Author : Roscoe Pound
language : en
Publisher:
Release Date : 1908
Mechanical Jurisprudence written by Roscoe Pound and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1908 with Law categories.
Failing Law Schools
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Author : Brian Z. Tamanaha
language : en
Publisher: University of Chicago Press
Release Date : 2012-06-18
Failing Law Schools written by Brian Z. Tamanaha and has been published by University of Chicago Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-06-18 with Education categories.
“An essential title for anyone thinking of law school or concerned with America's dysfunctional legal system.” —Library Journal On the surface, law schools today are thriving. Enrollments are on the rise and law professors are among the highest paid. 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 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. 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 provides the perfect resource for assessing what’s wrong with law schools and figuring out how to fix them. “Failing Law Schools presents a comprehensive case for the negative side of the legal education debate and I am sure that many legal academics and every law school dean will be talking about it.” —Stanley Fish, Florida International University College of Law
The Pragmatism And Prejudice Of Oliver Wendell Holmes Jr
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Author : Seth Vannatta
language : en
Publisher: Bloomsbury Publishing PLC
Release Date : 2019-06-26
The Pragmatism And Prejudice Of Oliver Wendell Holmes Jr written by Seth Vannatta and has been published by Bloomsbury Publishing PLC this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-06-26 with Philosophy categories.
This book investigates the extent to which various scholarly labels are appropriate for the work of Oliver Wendell Holmes, Jr. As Louis Menand wrote, “Holmes has been called a formalist, a positivist, a utilitarian, a realist, a historicist, a pragmatist, (not to mention a nihilist).” Each of the eight chapters investigates one label, analyzes the secondary texts that support the use of the term to characterize Holmes’s philosophy, and takes a stand on whether or not the category is appropriate for Holmes by assessing his judicial and nonjudicial publications, including his books, articles, and posthumously published correspondences. The thrust of the collection as a whole, nevertheless, bends toward the stance that Holmes is a pragmatist in his jurisprudence, ethics, and politics. The final chapter, by Susan Haack, makes that case explicitly. Edited by Seth Vannatta, this book will be of particular interest to students and faculty working in law, jurisprudence, philosophy, intellectual history, American Studies, political science, and constitutional theory.
Reconstructing American Legal Realism Rethinking Private Law Theory
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Author : Hanoch Dagan
language : en
Publisher: Oxford University Press
Release Date : 2013-08-20
Reconstructing American Legal Realism Rethinking Private Law Theory written by Hanoch Dagan and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-08-20 with Law categories.
In the myriad choices of interpretation judges face when confronted with rules and cases, legal realists are concerned with how these doctrinal materials carry over into judicial outcomes. What can explain past judicial behavior and predict its future course? How can law constrain judgments made by unelected judges? How can the distinction between law and politics be maintained despite the collapse of law's autonomy in its positivist rendition? In Reconstructing American Legal Realism & Rethinking Private Law Theory, Hanoch Dagan provides an innovative and useful interpretation of legal realism. He revives the legal realists' rich account of law as a growing institution accommodating three sets of constitutive tensions-power and reason, science and craft, and tradition and progress-and demonstrates how the major claims attributed to legal realism fit into this conception of law. Dagan seeks to rein in realist descendants who have become fixated on one aspect of the big picture, and to dispel the misconceptions that those gone astray represent the tradition accurately or that realism is now merely a historical signpost. He draws upon the realist texts of Oliver Wendell Holmes, Karl Llewellyn, and others to explain how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory. Building on this realist conception of law and enriching its texture, Dagan addresses more particular jurisprudential questions. He shows that the realist achievement in capturing law's irreducible complexity is crucial to the reinvigoration of legal theory as a distinct scholarly subject matter, and is also inspiring for a host of other, more specific theoretical topics, such as the rule of law, the autonomy and taxonomy of private law, the relationships between rights and remedies, and the pluralism and perfectionism that typify private law.
Judicial Decisions In International Law Argumentation
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Author : Letizia Lo Giacco
language : en
Publisher: Bloomsbury Publishing
Release Date : 2022-10-20
Judicial Decisions In International Law Argumentation written by Letizia Lo Giacco and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-10-20 with Law categories.
This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.
John Henry Wigmore And The Rules Of Evidence
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Author : Andrew Porwancher
language : en
Publisher: University of Missouri Press
Release Date : 2017-06-30
John Henry Wigmore And The Rules Of Evidence written by Andrew Porwancher and has been published by University of Missouri Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017-06-30 with Law categories.
Honorable Mention, 2017 Scribes Book Award, The American Society of Legal Writers At the dawn of the twentieth century, the United States was reeling from the effects of rapid urbanization and industrialization. Time-honored verities proved obsolete, and intellectuals in all fields sought ways to make sense of an increasingly unfamiliar reality. The legal system in particular began to buckle under the weight of its anachronism. In the midst of this crisis, John Henry Wigmore, dean of the Northwestern University School of Law, single-handedly modernized the jury trial with his 1904-5 Treatise onevidence, an encyclopedic work that dominated the conduct of trials. In so doing, he inspired generations of progressive jurists—among them Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Felix Frankfurter—to reshape American law to meet the demands of a new era. Yet Wigmore’s role as a prophet of modernity has slipped into obscurity. This book provides a radical reappraisal of his place in the birth of modern legal thought.
The Intellectual Sword
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Author : Bruce A. Kimball
language : en
Publisher: Harvard University Press
Release Date : 2020-05-26
The Intellectual Sword written by Bruce A. Kimball and has been published by Harvard University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020-05-26 with Education categories.
In the early twentieth century, Harvard Law was on the brink of financial and scholarly ruin. Discriminatory, intellectually arid, and nearly broke, the school struggled through World War II. Bruce Kimball and Daniel Coquillette chronicle the downfall and dramatic restoration of HLS as arguably the world’s most influential law school.
Theory And Practice In Essene Law
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Author : Aryeh Amihay
language : en
Publisher: Oxford University Press
Release Date : 2017
Theory And Practice In Essene Law written by Aryeh Amihay and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017 with History categories.
This book offers a novel approach for the study of law in the Judean Desert Scrolls, using the prism of legal theory. Following a couple of decades of scholarly consensus withdrawing from the "Essene hypothesis," it proposes to revive the term, and suggests employing it for the sectarian movement as a whole, while considering the group that lived in Qumran as the Yahad. It further proposes a new suggestion for the emergence of the Yahad, based on the roles of the Examiner and the Instructor in the two major legal codes, the Damascus Document and the Community Rule. The understanding of Essene law is divided into concepts and practices, in order to emphasize the discrepancy between creed, rhetoric, and practices. The abstract exploration of notions such as time, space, obligation, intention, and retribution, is then compared against the realities of social practices, including admission, initiation, covenant, leadership, reproof, and punishment. The legal analysis yields several new suggestions for the study of the scrolls: first, Amihay proposes to rename the two strands of thought of Jewish law, formerly referred to as "nominalism" and "realism," with the terms "legal essentialism" and "legal formalism." The two laws of admission in the Community Rule are distinguished as two different laws, one of an association for a group as a whole, the other as an admission of an individual. The law of reproof is proven to be an independent legal procedure, rather than a preliminary stage of prosecution. The methodological division in this study of thought and practice provides a nuanced approach for the study of law in general, and religious law in particular.
Gender Justice And Proportionality In India
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Author : Juliette Duara
language : en
Publisher: Routledge
Release Date : 2017-10-06
Gender Justice And Proportionality In India written by Juliette Duara and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017-10-06 with Social Science categories.
For a judiciary in a democracy, dispensing justice is not only about doing justice, but also about showing that justice is being done; it is about giving reasons and creating a "culture of justification". The question becomes how to nurture such a culture. A number of liberal democratic jurisdictions have answered this question in part with the adoption of the multi-step method of evaluating the constitutionality of legislative infringements on fundamental rights widely known as Proportionality Analysis. Under Proportionality Analysis courts must engage in a structured process of reasoning. This book deals with Gender Justice and Proportionality Analysis in India. The author argues that the Supreme Court of India should consider adopting Proportionality Analysis for the adjudication of the fundamental right to sex equality in Indian courts. The book includes an analysis of Canadian and South African Proportionality Analysis and makes some suggestions on how an Indian Proportionality Analysis could be generated using this comparative investigation. Additionally, the book proposes ways of applying the effects of socio-political context on doctrine, as well as doctrine’s interpretive impact on adjudicated outcomes for gender, thus making a contribution to feminist jurisprudence. Finally, the author analyses Indian gender equality jurisprudence, demonstrating the inadequacies of the current doctrinal framework for achieving the goal of substantive gender equality and suggesting ways in which an Indian Proportionality Analysis might be fashioned to address these inadequacies. A novel examination of the gender situation in India in comparative perspective, this book will be of interest to academics in the field of Gender Studies, Asian and Comparative Law and South Asian studies.