The Disenchantment of Logically Formal Legal Rationality, or Max Weber\u27s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought

Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. Professor Kennedy\u27s appreciation of Weber\u27s sociology of law begins with a summary description of the Western legal thought of Weber\u27s time as it looks from our present one hundred years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. He then presents Weber\u27s sociology of law, comparing and contrasting his approach with that of the social current. According to Professor Kennedy, the most striking thing about Weber\u27s sociology of law, from the perspective of legal theory a century after he wrote, is his ambivalent endorsement of legal formalism. This entailed rejection of the social current\u27s critique, a critique that is close to universally accepted today. Professor Kennedy explains Weber\u27s attitude toward legal formalism as motivated by the internal requirements of his theory of domination, in which, after the demise of all earlier modes of legitimation, the Iron Cage of modernity is held together by bureaucrats defined by their adherence to that mode of legal reasoning. He then argues that Weber\u27s approach was inconsistent with the irrationalist and decisionist strands in his own theory of modernity, a theory that helps in understanding the current situation of legal thought, if we take the un-Weberian step of applying it to legal formalism. Finally, Professor Kennedy offers an interpretation of the contemporary mode of legal thought as an episode in the sequences of disenchantment and reenchantment suggested by Weber\u27s philosophy of history, and uses Weberian elements to construct a distinct contemporary ideal type of legal thought. The very brief conclusion suggests the strong affiliation between Weber (read as above) and one of the sects of modern legal theory, namely critical legal studies

The Concept of Law and the New Public Law Scholarship

This article is an attempt to identify the nature of an emerging field of legal scholarship known as New Public Law. New, of course, is a dangerous term. Our society\u27s image of itself as forward looking and its tendency to market itself to itself through claims of novelty has spawned a range of phrases from the New Deal to the New Criticism to various new, improved laundry detergents. One does not hear very many positive comments about the old these days. The argument that old ways of doing things are better has become an emblem of mistaken thought, and the elderly have been demoted from a source of experience and wisdom to just one more underrepresented group. As a result, it is very easy to make grandiose and ultimately unjustified claims for minor changes by slapping the word new on them

The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality. This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil and Bill Eskridge memorably labeled ―quasi-constitutional law. These rules require that Congress make its intent especially clear when it legislates in areas of particular constitutional sensitivity—for example, by intruding on the prerogatives of the states. This Essay proceeds in three parts. Part I develops two problems in statutory construction—the canon of constitutional avoidance and judge-made clear statement rules—by reference to some major cases decided in the Supreme Court‘s 2008 Term. Part II elaborates the Legal Process School‘s approach to these sorts of problems of canonical construction, with particular emphasis on Professor Frickey‘s work in this vein. Part III then develops the central Legal Process insight that rules of construction are part of constitutional interpretation as a means of interpreting and protecting the broader structural aspects of the Constitution, namely, federalism and separation of powers

The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality. This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil and Bill Eskridge memorably labeled ―quasi-constitutional law. These rules require that Congress make its intent especially clear when it legislates in areas of particular constitutional sensitivity—for example, by intruding on the prerogatives of the states. This Essay proceeds in three parts. Part I develops two problems in statutory construction—the canon of constitutional avoidance and judge-made clear statement rules—by reference to some major cases decided in the Supreme Court‘s 2008 Term. Part II elaborates the Legal Process School‘s approach to these sorts of problems of canonical construction, with particular emphasis on Professor Frickey‘s work in this vein. Part III then develops the central Legal Process insight that rules of construction are part of constitutional interpretation as a means of interpreting and protecting the broader structural aspects of the Constitution, namely, federalism and separation of powers

The Evolution of Obstruction: Mike Mansfield and Multiple Tracks

A core question in analyzing political institutions is how these institutions themselves change. This thesis seeks to understand how the institutional procedure change of multiple tracks affects the functioning of the filibuster in the U.S. Senate. The data utilized are Washington Post discussions of the filibuster before and after the implementation of multiple tracks. Descriptive statistics, analyses of mean differences, and OLS regression are utilized to test how this change altered the functioning of the filibuster in the Senate. Ultimately, this thesis finds that the implementation of multiple tracks does not affect the functioning of the filibuster, but does alter the duties of the majority leader within the chamber in relation to managing filibusters. This finding is linked to classical and contemporary examples of the filibuster to illustrate how the role of the majority leader changes in practice

The Myths of Macpherson

For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms