Improving One\u27S Situation: Some Pragmatic Reflections On The Art Of Judging

From the introduction: As legal theorists, we live in an age of self-conscious repetition: everything is neo and nothing is new. There are neo-realists, neo-formalists, neo-conservatives, and neo-pragmatists to name just a few. And what is not neo is post as in post-structuralist, post-colonial, and even postcritical. Indeed, the newest theories sound pointedly antitheoretical as deconstructionists, feminists, and critical legal scholars argue in various ways that conventional theory making is but one more mechanism for oppressing the powerless. In all this theory consciousness, it is difficult to have simple thoughts and it is especially difficult to think simply about judging because judging has been the object of so much theoretical attention. This is too bad. Judging, I think, is a little like riding a bicycle-if you are teetering out of control, it is unlikely that a complicated theory will help to restore the balance. Simple thoughts are more useful; they are easier to internalize and therefore more accessible when needed

Langdell and the Invention of Legal Doctrine

This paper addresses two related questions. The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts that describe the Nineteenth Century conception of scientific methodology. This enables us to recreate not only the substance of Langdell’s theory, but also its method. Further, understanding its method allows us to ask crucial questions about justification: What is it that makes Langdell believe that his theory of contract law is correct? The second question addressed in this paper relates to legal theory and the use of doctrinal theories in legal decision making. As a pragmatist, I reject the idea that there is one form of legal reasoning. Instead I believe that the courts employ a variety of strategies to navigate between the demand for justice in the individual case and the need to develop general theories that can be used to predict future decisions. Doctrinal theories are one of these strategies and, without question, a very important one. In the final section I use what we have learned about Langdell to identify the way in which doctrinal theories work and to explain their succes

Old-Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr.

From the introduction: Whether Holmes was the greatest American jurist is a question for debate. What needs no debate is the fact that Holmes is the most published, the most discussed, the most praised and the most criticized judge in American history. In view of this fact, one might well doubt the need for yet another paper on Holmes. The sheer number of studies, discussions, collections and biographies raises question as to whether we have not already said enough. Is there any point-besides the obvious pleasure of a good symposium-to more discussion of Holmes and his effect on American law? For a number of reasons, I think that the answer to this question is a surprising yes. No one would dispute that Holmes is an important source of our understanding about the American legal tradition. It is not just that his writings are widely read; it is also that lawyers and scholars have treated him as a particularly important symbol of American law, who-depending on your viewpoint-should be praised for his virtues or condemned for his shortcomings. For example, some scholars think that Holmes deserves high praise for rescuing American law from the rigidity of formalism.\u27 Others disagree: they suggest that Holmes was insufficiently principled; that he was self serving, insensitive and cynical; and that, in view of these shortcomings, he is an unworthy representative of American law