Legal Classics: After Deconstructing the Legal Canon

The debate over the canon has gripped the University in recent years. Defenders of the canon argue that canonical texts embody timeless and universal themes, but critics argue that the process of canonization subordinates certain people and viewpoints within society in order to assert the existence of a univocal tradition. Originating primarily in the field of literary criticism, the canon debate recently has emerged in legal theory. Professor Francis J. Mootz argues that the issues raised by the canon debate are relevant to legal scholarship, teaching and practice. After reviewing the extensive commentary on the literary canon, Professor Mootz criticizes the polemical structure of the debate and asserts that an appreciation of classical, as opposed to canonical, texts opens the way for a productive inquiry. He defines a classical text as one that both shapes contemporary concerns and also serves as a point of reference for revising these concerns. Classical texts enable critical perspectives rather than submitting to them, he continues, because they provide the arena for debates about issues of public concern. Using Hadley v. Baxendale as an example of a legal classic, Professor Mootz contends that the power of such a classical text is its ability to shape hotly contested legal debates. Our time . . . seems unpropitious for thinking about the question of the classic, for . . . it seems to be a simple either/or that requires merely a choosing of sides: for or against? back to the classics or away from them? Our time calls not for thinking but a vote. And it may well be too late for thinking about the classic in any case, for the vote is already in, and the nays have it

The Effects of Fee Shifting on the Settlement Rate: Theoretical Observations on Costs, Conflicts, and Contingency Fees

Litigation costs could be conceived as a bribe to parties to reach a contractual agreement settling their dispute. The question of what effect fee-shifting rules might have on the rate of settlements in lawsuits is examined

The Dimensions of American Constitutional Equality

Liberty and equality are the hallmark characteristics of any legal order. Constitutional equality in the US is discussed. The rights of equality are not economic in nature, and they are not subject to strictly majority rule

Ugly American Hermeneutics

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud

Faithful Hermeneutics

This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on Scriptural and Constitutional Hermeneutics. The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review. My article compares legal and religious hermeneutics by exploring the dual nature of what I term faithful hermeneutics. The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious interpretation by comparing hermeneutical activities undertaken by faithful adherents to these two different textual traditions. In this first sense, it is to compare how these practices are the hermeneutics of the faithful. On the other hand, the phrase suggests an analysis of how interpreters in these two traditions remain faithful to the nature of their practice. In this second sense, it is to compare how hermeneutics can be faithfully accomplished. My thesis is that these two senses of faithful hermeneutics are connected. The fact that it is faithful adherents who engage in the interpretive practice in large part defines how they can, and should, remain faithful to the interpretive enterprise. I anchor my argument in Hans-Georg Gadamer\u27s critique of historicism, in which he references the practices of legal and religious hermeneutics. Gadamer\u27s philosophical hermeneutics explains how faith is a prerequisite of understanding, even as understanding revitalizes and reshapes the faith one brings to a textual tradition. I then unfold the critical dimensions of faithful hermeneutics by comparing the work of Cardinal Joseph Ratzinger (later Pope Benedict XVI) and Gianni Vattimo on the Catholic tradition. I argue that these two thinkers display both the broad range and the non-methodological character of the critical insights of faithful hermeneutics. I conclude by suggesting that the parallels between religious and legal hermeneutics are instructive, but that we remember that it would be a mistake to conflate these two instances of faithful hermeneutics in our secular age

Minimum Age Difference as a Requisite for Adoption

Recent incidents of abortive uses of adoption statutes have pointed up the possible need for a healthy change in our adoption laws: the inclusion of a required age difference between adopter and adoptee. The author urges that such a statutory requirement is necessary to more fully effectuate the idea that adoption imitates nature, a postulate of adoption law originating in Roman jurisprudence and, so the author contends, underlying adoption law in this country. The article raises interesting questions concerning the very nature of adoption, the function which it serves in our society, and the possible policy differences between minor and adult adoptions