Professor Linda Berger rejoins her Feminist Judgments: Rewritten Opinions of the United States Supreme Court coauthors in this essay presenting feminism as the foundation for a developing form of rich, complex, and practical legal scholarship-the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments (...) projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory. Finally, this essay uses contemporary examples of feminist judging to illustrate that the gap between feminist theory and judicial decision making is narrowing, a real-world advance that suggests a widening judicial audience for Feminist Judgments. (shrink)

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that (...) courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many – and in a few circuits, most – decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. The Article reviews the reasons why non-publication is a practical, constitutional and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a re-thinking of the way courts operate and the way scholars study them. (shrink)

A recurring question in narrative scholarship has been the relationship of narrative to law. Most narrative scholars agree that stories are central to law. As Stephen Paskey recently pointed out, stories are more than a tool for persuasion. They are embedded in law’s very structure. But how does that work? Are rules just stories articulated in a different form? We have barely begun to explore narrative’s roles, but it is already clear that, in the words of Meryl Streep, “it’s complicated.” (...) A conceptual map of what we’ve learned so far can help us unpack the complexity. Otherwise we may run into two problems: We may be less likely to understand and appreciate each other’s work, and we may have trouble thinking clearly about how law and narrative relate. This article takes a first run at a conceptual map, one that honors the work of narrative scholars of various stripes and explains how the strands in this rich body of work interrelate. With that proposed structure in mind, the article then offers some thoughts about how stories relate to rules. It argues that rules are not the opposite of stories, nor are they just stories in a different form. Rather, at every level of their creation, justification, interpretation, and application, rules are constructed from multiple narrative influences. Understanding these influences will produce judges better able to make good decisions and lawyers better able to perfect their craft. Much work remains to be done, but as the map demonstrates, we are well on our way. (shrink)

An open-handed image of rhetoric presents an argument against the closed fist of logic and the “nasty, brutish, and short” depictions associated with legal rhetoric. In 1985, Robert Cover laid bare the field of pain and death where legal interpretation plays itself out in human consequences. Five years later, Gerald Wetlaufer described a landscape of brutal certainty as the backdrop for much of legal rhetoric. And the arena of criminal trials has long been recognizable as a bleak setting within which (...) “[j]ustice determines blame and administers pain in a contest between the offender and the state...” My purpose in this chapter is to explore alternative conceptions of legal rhetoric. These alternatives oppose both the Aristotelian view of rhetoric as the “faculty of observing in any given case the available means of persuasion” and the closed system of legal rhetoric identified by Professor Wetlaufer. Within that system, Wetlaufer found a linked set of rhetorical commitments. These commitments included allegiance: “to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies.” There were commitments as well “to hierarchy and authority, to the impersonal voice, and to the one right answer to questions and the one true meaning of texts.” All this led Wetlaufer to conclude that the dominant rhetoric of the law is “the rhetoric of foundations and logical deductions,” a rhetoric that “relies, above all else, upon the denial that it is rhetoric that is being done.”. (shrink)

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal (...) education. The curse persisted throughout the writing of The Law's Mystery.For Jack, the essence of a life well lived within the law could be found in the phrase practical wisdom and for me, that phrase was the mystery. It's not that there were no definitions: instead, they were too simple or too many, too diverse or too abstract. Where were the living stories of practical wisdom at work within the law? Where were the concrete images of the practically wise? I understood that practical wisdom grew out of practice and grew into action. But when I attempted to seize upon it for study and description, I chased an elusion. For this Symposium honoring Jack's scholarship, I decided to see again if I could catch a glimpse. (shrink)

Hans-Georg Gadamer’s philosophical hermeneutics is especially relevant for law, which is grounded in the interpretation of authoritative texts from the past to resolve present-day disputes. In this collection, leading scholars consider the importance of Gadamer’s philosophy for ongoing disputes in legal theory. The work of prominent philosophers, including Fred Dallmayr, P. Christopher Smith and David Hoy, is joined with the work of leading legal theorists, such as William Eskridge, Lawrence Solum and Dennis Patterson, to provide an overview of the connections (...) between law and Gadamer’s hermeneutical philosophy. Part I considers the relevance of Gadamer’s philosophy to longstanding disputes in legal theory such as the debate over originalism, the rule of law and proper modes of statutory and constitutional exegesis. Part II demonstrates Gadamer’s significance for legal theory by comparing his approach to the work of Nietzsche, Habermas and Dworkin. (shrink)

Legal scholars have only recently begun to address the radical challenges for law and legal theory that follow from Friedrich Nietzsche's pathbreaking work. This collection brings together articles from leading thinkers who consider how Nietzsche's philosophical and rhetorical interventions illuminate the failures of contemporary legal theory. Part One considers the connections between law, political philosophy and Nietzsche's genealogy. Part Two provides a number of competing interpretations of Nietzsche's relevance for legal hermeneutics. Part Three includes articles that chart a course for (...) legal critique that remains true to Nietzsche's radical character. The work of prominent philosophers, including P. Christopher Smith, is joined with the work of leading legal theorists, including Philippe Nonet and leading rhetoricians, including Marianne Constable, to provide complex and sophisticated overview of the manner in which Nietzsche problematizes law and legal theory. (shrink)

Comparative law is much more than “matching laws.” Professor Grossfield’s short, lively book will certainly awaken its German reader to the value, indeed necessity, of comparative law and comparative insights in his or her own practice or scholarly work. This, he aims at the skeptic who may think of comparative law or foreign legal systems as arcane and useless fluff, too luxurious for the hard working “practical-minded” practitioner. Professor Grossfield throws the cold water of realization into this skeptic’s face. The (...) message being that considering comparative approaches and theory about similar problems may indeed be as practical as one can get. The English translation will do the same for the Anglo-American reader. More importantly, Professor Grossfield provides the perspective of a deep thinking German scholar on problems relating to the meanings of law, thinking, and being. These may seem abstract philosophy to the reader of this Essay, but Professor Grossfield’s thoughts on these issues provide the keenest insight into how a German scholar approaches the law, legislation, cases, doctrine, philosophy, and life. There is little that is more practical to and American comparative law scholar or an American practitioner who faces problems of continental law and practice from time to time. Grossfield provides the reader with insight into the discipline fo comparative law; but more importantly, he proves the readers of all nationalities with insight into how a German law practitioner and scholar approaches legal problems. This is comparative law. Professor Grossfield intends to, and succeeds, at writing a book about comparative law. He ahs produced of comparative thinking—of comparative law. (shrink)

Postmodern thinking puts severe stress on the project of legal theory. The philosophical critique of grand narratives, coupled with the radically pragmatic return to localized practices, has rendered theorizing suspect. Theory appears to be a quaint vestige of previous "bad faith" refusals to accept the finitude of human existence. But the postmodern position is even more complex, because postmodern anti-theorists tend to employ perplexing jargon and wield sophisticated and obscure concepts in their work. The postmodern puzzle is whether one can (...) challenge theory without theorizing. Is theory defined by its practical effects, or by its refusal to become complicit in everyday practices? Is the urge to theorize a product of modernist ideology that leads us astray, or our openness to enlightenment? Although postmodern thinking has made these questions particularly pressing, they are timeless. Therefore, it should not be surprising that contemporary readings of Aristotle can provide a helpful guide for uncovering the possibilities of postmodern legal theory. I address the postmodern puzzle regarding the nature of theory and its relationship to practice by drawing from the contemporary appropriations of Aristotle's practical philosophy by Martin Heidegger, Hans-Georg Gadamer and Joseph Dunne. My goal is to outline the role that critical legal theorists can play in light of the neo-Aristotelian account of theory that emerges from this discussion. Although this account reinforces the postmodern critique by revealing that the image of the sovereign theorist who stands as expert commentator to the side of legal and social practices is an ideological myth, this does not mean that theory is irrelevant. Once theory is reconceived as a disposition within practice, its unavoidable significance becomes clear. The practical demand for judgments, combined with the normative injunction to do justice, makes law a particularly important venue for investigating the entwinement of theory and practice. I conclude by suggesting that critical legal scholarship by Bill Eskridge and Kathryn Abrams provide examples of this dynamic of theory and practice. (shrink)

Even after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and (...) justice. The project of truly apprehending emotions, however, requires more than appreciating that they play a crucial role in decision making. Additionally, we must shun the heuristic and faulty premise that an individual's ascription of meaning regarding a particular situation involves the weighing or parsing of emotions and rational contemplation as though one was analyzing a financial statement by simultaneously contrasting two columns of data. Rather, the human capacity to discern meaning arises not simply from the consideration of emotions with reason nor even from their intertwining like vines of ivy around a pole. Emotions and rationality do not simply work together; they meld into a new, unique entity that we designate as “meaning.” It is the systemic fusing of emotions and reason that comprises “meaning,” thus underscoring the indispensability of emotions in projects such as law making and legal analysis. This Article first briefly recounts the psychology and philosophy of emotions within a framework of modern systems theory to explain the dynamic of how people and groups must use emotions to ascribe meaning and significance to their lives. Second, and more importantly, this Article explains that the most progressive theorists still heuristically separate emotions and rationality. That is, even some of the best minds writing on emotions have trouble conceptualizing a systemic thought process of coalescing emotion and reason yielding modes of behavior, a matrix of moral values and other indices of meaning. The primary purpose, then, is to explicate that the process through which individuals interpret--ascribe significance to objects and events--actually melds emotions and reason to the point where, within the interpretive schema, the two cannot be separated but, rather, emerge as meaning upon which action is taken. This Article offers a construct, somewhat humorously denoted the “Russian Dressing” metaphor, to help enable judges and other social actors to envision the decision making process not as the layering of emotions and rationality, but as a systemic flow of emotions and reason that unite into a singular amalgam--something unique and new--of which neither the former nor the latter masters the other. (shrink)

This short paper appears in a volume of original essays, On Philosophy in American Law (Francis J. Mootz III ed., Cambridge Univ. Press 2009). I argue that the undeniable rift between philosophy and law is more than a simple dichotomy of theory and practice. Instead, the sharp distinction between philosophy and law occurred when both disciplines built insular guilds that employed distinctive vocabularies to distinguish themselves from rhetoric, and it is by returning to their roots in rhetoric that philosophy and (...) law might find their common ground in the elucidation of rhetorical knowledge. (shrink)

It is a common metaphor that the text is a window onto the world that it depicts. I want to explore this metaphor and the insights it may offer us for better understanding legal interpretation. As in the opening epigraph from James Boyd White, I shall develop the metaphor of the text as window in three ways: the text may be transparent, opaque, or translucent. My goal will be to argue that the best way to understand legal interpretation is to (...) conceive of the legal text as translucent, but along the way I will compare the merits also of considering the legal text as either transparent or opaque. (shrink)

The linguistic-ontological turn has brought uncountable consequences to the interpretation of Law. However, dogmatic-legal knowledge remains hostage to a judicial protagonism, a philosophy of consciousness that, together with legal discretion, represent two sides of the same coin. The criticism of judicial discretion is a matter of democracy: decisions must be coherent, assuring the integrity of Law by reinforcing the normative power of the Constitution from which arises the need for correct answers in Law.

The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening (...) an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity of going further than modern natural law theorists in the discussion of the concept of person, and philosophical hermeneutics provides guidance for contemplating the human person’s concrete, historical and relational dimension. Finally, this direction has affinities with the new constitutional law that seeks to change society and improve the republican and communal features of civic life. This Article discusses these four aspects, guided by a specific and peculiar Brazilian issue: the rights of indigenous persons. This issue provides a privileged point of view to discuss juridical subjectivity. The analysis will draw from the theoretical approach of Martin Heidegger’s philosophical hermeneutics to frame a discussion of the interpretation of the Brazilian Constitution regarding indigenous rights. This discussion will demonstrate that modern developments in the Brazilian Constitution have changed the paradigm for analyzing indigenous rights, and that individuals should understand and further develop this paradigm in order to recognize and respect the alterity of the indigenous peoples. (shrink)

The purpose of the reflections that follow is to highlight the meaning and importance of the hermeneutic shift produced by the work of Gadamer, to consider some of his themes and categories, and to extend the meaning of this hermeneutic rationality to the legal field in terms of a new conception of interpretation. A second objective is to catch sight of new theoretical perspectives, having as a starting point the unfolding of practical philosophy into hermeneutic philosophy carried out by Gadamer. (...) This article aims at recuperating, among other things, the fundamental hermeneutic problem, so as to obtain a glimpse into the possibility of new theoretical prospects (just as Aristotle’s proposed division of philosophy into practical and theoretical generated new theoretical perspectives for Gadamer). However, this objective will not be developed in-depth in its concepts and categories, but only suggested in the final paragraph. (shrink)

There is nothing more refreshing than a successful failure. A momentary flaring of flamboyance. A near miss. Fifteen weeks as media monarchs; a good part—a small part—of a decade as a political threat to the order of the academy, if not the stability of the system. The affective bonds and the institutional disruption of youthful and latterly not-so-young dissidents and socialist sympathizers within the law schools definitely had their excitements, their impetus and novelties, and then they grew old, got rejected, (...) disappeared into the shadows, backrooms, and faculty lounges. The various histories assign different figures to the failure of critical legal studies (CLS) in the U.S. of A.: it was killed by the lack of a positive program; it went underground and still subsists as interstitial trench warfare; it slept with the enemy, got distracted by the status incentives and glittering prizes of the law professoriat; it was undermined by its own poor scholarship, by the pretention of philosophy; it fragmented into forty different movements; it was undone by a predilection for abstraction and consequent waning of its visceral commitments. I could think of plenty of other post-mortem descriptive vivisections, but that list will do. Add to it as you wish. This Article will focus on the last interpretation, the decline of critique in law due to its tendency to academicism, a propensity to adiaphorism or indifference to doctrine, which is an essentially hermeneutic diagnosis of an affective inability. (shrink)

Hans-Georg Gadamer and Paul Ricoeur were two of the most important hermeneutical philosophers of the twentieth century. Gadamer single-handedly revived hermeneutics as a philosophical field with his many essays and his masterpiece, Truth and Method. Ricoeur famously mediated the Gadamer-Habermas debate and advanced his own hermeneutical philosophy through a number of books addressing social theory, religion, psychoanalysis and political philosophy. This book brings Gadamer and Ricoeur into a hermeneutical conversation with each other through some of their most important commentators. Twelve (...) leading scholars deliver contemporary assessments of the history and promise of hermeneutical philosophy, providing focused discussion on the work of these two key hermeneutical thinkers. The book shows how the horizons of their thought at once support and question each other and how, in many ways, the work of these two pioneering philosophers defines the issues and agendas for the new century. (shrink)

Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise (...) of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept the postmodern verdict that his theoretical roar simply has no practical bite. Sophisticated philosophy is just another narrative, the postmodernists argue, and the dream of critical theory is just a fantasy. Locked in the grip of this impasse, theorists are now searching for a new approach to critical theory. Against this backdrop, Jack Balkin has written an important book that attempts to define critical theory in our postmodern age. Balkin's previous legal scholarship invoked postmodern and deconstructive themes, but it also invoked the critical legal studies tradition in America, which has adopted (loosely) the goals and methods of the Frankfurt School in the context of legal theory. Cultural Software: A Theory of Ideology, Balkin moves beyond the specific realm of legal philosophy and presents a comprehensive theory about the nature and genesis of ideology and the role of critical theory in responding to the effects of ideology. Balkin argues that using the metaphor of “cultural software” to describe the “tools” of understanding and evaluation opens a pathway for moving beyond entrenched positions and delivering a new and more productive account of ideology and the prospects for critical theory. Against this backdrop, Jack Balkin has written an important book that attempts to define critical theory in our postmodern age. Balkin's previous legal scholarship invoked postmodern and deconstructive themes, but it also invoked the critical legal studies tradition in America, which has adopted (loosely) the goals and methods of the Frankfurt School in the context of legal theory. In Cultural Software: A Theory of Ideology, Balkin moves beyond the specific realm of legal philosophy and presents a comprehensive theory about the nature and genesis of ideology and the role of critical theory in responding to the effects of ideology. Balkin argues that using the metaphor of “cultural software” to describe the “tools” of understanding and evaluation opens a pathway for moving beyond entrenched positions and delivering a new and more productive account of ideology and the prospects for critical theory. In short, Balkin proposes to demonstrate that critical theory remains possible in a postmodern world. Although Balkin displays an impressive grasp of numerous currents in contemporary thought, I will argue that the guiding metaphor of “cultural software” proves unhelpful in gathering these currents into a better conception of critical theory. (shrink)

A roundtable discussion about the relevance of contemporary hermeneutical philosophy for legal theory raises a foundational question often neglected in interdisciplinary articles: What is the relationship between law and philosophy? The burgeoning scholarship drawing connections between legal theory and philosophy increasingly has come under attack for displaying a naive view about the potential legitimate exchanges between philosophers and legal academics. I have written elsewhere at length about the important insights that philosophical hermeneutics can lend to jurisprudential discussions of the rule (...) of law. In this essay, I develop my argument by stepping back and attending more generally to the connections between the work of contemporary philosophers and the work of legal theorists. In part I, I describe several recent critical rejoinders to efforts by legal scholars to utilize philosophy in legal theory. In part II, I respond to these critiques and argue that attempts to connect contemporary hermeneutical philosophy to legal theory are legitimate and important undertakings. In part III, I contend that contemporary philosophy can benefit from an interdisciplinary exchange with law. (shrink)

This article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory. Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical (...) hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At the other end of the spectrum, Nietzsche's perspectival hermeneutics is seemingly nothing but thoroughgoing critique, to the point of collapsing into irrationalism under certain postmodern readings. This article develops a critical hermeneutics by demonstrating that philosophical hermeneutics can accommodate Nietzschean critique. I set the stage for the paper by recounting Allan Hutchinson's Nietzschean-inspired claim that radical critique in the tradition of the critical legal studies movement provides a necessary antidote to Gadamer's hermeneutical conventionalism, and then I provide an overview of Nietzsche's hermeneutical philosophy in terms of his naturalism and perspectivism. In the heart of the article I draw connections between Nietzsche and Gadamer by comparing perspectivism and fusion of horizons, their treatment of rhetoric and aesthetics, and their investigation of the critical power of tradition. I then develop the connections between these two thinkers through a close and critical reading of Gianni Vattimo's "weak thought," and conclude the article with a consideration of Supreme Court jurisprudence on the legal status of gays and lesbians in contemporary society. Arguing that the Supreme Court opinions fail on hermeneutical grounds, I suggest that Nietzschean critique helps to supplement our understanding of legal practice and also provides helpful insights to legal theorists. (shrink)

This essay celebrates Leonard Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. I discuss recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. The Article also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our “reasoning” selves. Lastly, the author examines what Riskin has, in an earlier work, described as (...) the ethical hard case in light of recent explorations into the emotional wellsprings of deontological versus consequentialist thinking. Although the mediation community need not wade deeply into the debates currently roiling social psychologists, it is useful to reflect on the genesis of our ethical commitments and whether they continue to serve the field's long-term goals and interests. (shrink)

This paper provides a detailed account of Gadamer's philosophical hermeneutics and its relationship to contemporary problems in legal theory. I first demonstrate that Gadamer's approach charts a course between the inflated claims of critical legal studies and the subjectivism of the law and literature movement. I then interrogate the hermeneutical approach from the perspective of Habermas's critical theory. I conclude that Ricoeur's intervention in the Gadamer-Habermas debate helps significantly to draw out the critical elements of Gadamer's work. I conclude by (...) developing new model of legal practice and theory grounded in the textuality of law. (shrink)

Karl Llewellyn and the course of philosophy in American law -- Philosophical perspectives on law -- Areas of philosophy and their relationship to law -- Philosophical examinations of legal issues -- Law, rhetoric, and practice theory -- Commentaries-- Questioning the relationship between philosophy and American Law.