Structuralist Legal Histories

This is a contribution to a symposium titled Theorizing Contemporary Legal Thought. The central theme of the piece is the relation between legal structuralism and legal historiography

Pragmatic Liberalism: The Outlook of the Dead

At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that “law in the books” had drifted too far from the “law in action.” This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and legal work and the meaning of best practice in a world still flailing in the economic wake of 2008. In a sense, we are experiencing a collective crisis of legal identity. This Article confronts this crisis with the instinct that many of the profession’s challenges are symptomatic of a deeper, structural crisis about what it means to “think like a lawyer.” We are often told that the key takeaway of legal education has precisely to do with this phrase, which we can unpack as referring to the mastery of a set of techniques, patterns, and modes of legal reasoning. But what if these techniques were themselves in a state of crisis? What if it turned out that the deeply conflicted nature of legal thought was a source of the surface problems with which we are more familiar? It is with these questions in mind that this Article diagnoses the crisis in contemporary legal thought

A Prolegomenon to the Study of Racial Ideology in the Era of International Human Rights

There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today

Extraterritoriality, Antitrust, and the Pragmatist Style

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by pragmatism. Taking this idea as its baseline, this Article\u27s central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism\u27s ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: eclectic pragmatism, as evidenced in the work of Thomas Grey and Daniel Farber, economic pragmatism, as espoused by Richard Posner, and experimental pragmatism, represented in the work of Charles Sabel, William Simon, and Michael Dorf. While these three styles are hardly determinative, they do suggest meaningfully different orientations, as illustrated in an analysis of F. Hoffman LaRoche Ltd. v. Empagran, the U.S. Supreme Court\u27s most recent extraterritorial antitrust decision. The irony, once one sees the three pragmatisms in action, is that they all fail to offer anything resembling the promise of a truly pragmatist moment of legal decision