The much anticipated, long-awaited, already-canonical-anthology Canon of American Legal Thought is now officially out, published by Princeton University Press. In truth, those who have known about the David Kennedy and Terry Fisher’s canon project perhaps were not holding our breath, as many of us have save the spiral bound photocopied volume that was circulated since over a decade ago. I took the course, carrying the same name of the book, as an L.L.M. student at HLS. Coming from Tel-Aviv for graduate studies in law in the U.S., the course was perfect as a crash introduction to many of the themes and schools of thought in the contemporary American legal academy. Fisher was not teaching the course with Kennedy that year, but their super-thoughtful S.J.D student at the time, now Tel-Aviv law professor, Roy Kreitner, was the designated Teaching Assistant, and in practice Roy served as a co-lecturer on the course. Together, Kennedy and Kreitner gave us a fabulous roller coaster ride through legal realism, the legal process school, legal liberalism, CLS, L&E, socio-legal studies, and feminist and race crits.
The anthology as much as I can tell, is pretty much identical to the materials we used for the course. The blurb of the book claims that these are “the twenty most important works of American legal thought since 1980.” What is added is that in the anthology, each article is preceded by a short intro “highlighting the article’s main ideas and situating it int eh context of its author’s broader intellectual projects, the scholarly debates of his or her time, and the reception the article received.”
Here is the list of the hall-of-fame twenty:
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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 ColumbiaLaw 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
Kimberlé 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.
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It would be fascinating to hear how people react to the list – obviously Kennedy and Fisher have a particular view of the development of legal thought. As crits, they see legal realism as the origins of contemporary legal reasoning, leading to subsequent schools of thought, all attempting to respond to the realist challenge to 19th century formalism. They view partial successes by some of these responses but have a deep affiliation with the particular later challenges presented by Duncan Kennedy, Robert Cover, MacKinnon and Crenshaw to the Dworkinian reliance on principles and the Calabresi comfort with economically sound policies. I often think about how my American legal education would have been different with a different sequence of exposure to the various ideas and research networks with which I am currently engaged. How would a different duo, say, Calabresi and Dworkin, collaborate on a competing course and anthology?
Posted by Orly Lobel on November 30, 2006 at 02:03 PM
Comments
No room at the inn, it appears for perhaps the most significant legal development of the last thirty years, the retrenchment of liberal hegemony in legal thought? No room for what Michael Van Alstine bewailed as the “resurgent strain of formalism” that “[t]he late 1980s witnessed … the rise of a new, and perhaps more powerful, species of formalism now commonly known as ‘new textualism’,” Dynamic Treaty Interpretation, 146 U Penn. L. Rev 687, 689, 716 (1998)?
I can buy that critters don’t like formalism, but to seemingly omit it entirely from a tome that aspires to be a “Canon of American Legal Thought” seems strikingly dishonest. It would be like writing a “canon of American food” and omitting all things Italian. If you’re going to ignore the best and the most significant, you can wax as poetic as you like, but the exercise remains hollow. This volume may well be “a fabulous roller coaster ride through legal realism, the legal process school, legal liberalism, CLS, L&E, socio-legal studies, and feminist and race crits,” but a “Canon of American Legal Thought” it is not.
Posted by: Simon | Dec 1, 2006 2:13:23 PM
I think it’s a fine list. Of course, we’d all do it a bit differently, so particular quibbles are sort of beside the point. (No Democracy and Distrust?) But the one thing that seems awfully odd to me is to include the Wechsler article without also including Charles Black’s response, which is the far greater article, not to mention more persuasive and historically important. Yes, one should understand the post-Brown anxiety among (liberal) legal elites. But one should also understand how the Black article, and the Civil Rights Act, virtually eliminated that anxiety for the remainder of the Warren Court — at least until the post-Warren Roe decision; see again Ely. (If it were up to me, there’d be a separate category covering the collected works of Charles Black, e.g., the Harvard State Action Foreword; Structure and Relationship; etc. — but that betrays my bias.)
Posted by: Marty Lederman | Nov 30, 2006 6:29:09 PM
I’d be interested to hear what people think of the category, “The Emergence of Eclecticism.” That sounds like they’re throwing their hands up in the air. Is interdisciplinarity really “eclecticism”?
Posted by: Matt Bodie | Nov 30, 2006 3:18:23 PM