The Real Formalists, the Real Realists, and What They Tell Us about Judicial Decision and Legal Education

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are numerous, remote, and unfamiliar, and to create stable images of cultures that are dramatically different from our own. One of the greatest services that a historian can perform is to identify and define a particular time period so that we can grasp its distinctive features. Another great service is to apply critical scrutiny to that definition in order to highlight and counteract the distortions that periodization inevitably creates. Just as our mental topography of Western civilization is irretrievably shaped by its division into Classical Antiquity, the Early Middle Ages, the High Middle Ages, the Renaissance, the Reformation, and the Early Modern Era, so our mental topography of American legal history is shaped by its division into formalism, realism, legal process, and the modern period, the last of which consists of law and economics, critical legal studies, and law and society. Legal historians have done us a great service by grouping the work of judges and scholars into these readily comprehended periods and defining the mode of thought that characterizes each one. In his new book, Beyond the Formalist-Realist Divide, Brian Tamanaha does us a great service by revealing that this periodization rests on serious distortions. Specifically, he demonstrates that the formalists were not formalist, that they simply did not subscribe to the mode of thought that has long been regarded as their defining feature. He goes on show that the realists were not realists, or at least not nearly as realist as subsequent observers have depicted them

Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause

This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws within our existing culture. Over the course of Western civilization, attitudes about suicide have oscillated from positive approbation in many Greek and Roman sources, to outright and unalterable opposition by Christian writers, to acceptance and limited approval by contemporary secular thinkers and health practitioners. At present, traditional, Christian-based morality and an emerging secular morality centered on the value of self- fulfillment are in conflict within our society, a conflict that probably reflects a slow historical transition from the first to the second. The intense debate about the morality of assisted suicide is one aspect of this conflict. Blanket prohibitions of assisted suicide support one side of this debate, a side that happens to be allied with the Christian religion. Consequently, these laws violate the Establishment Clause

Why Law Schools Do Not Teach Contracts and What Socioeconomics Can Do About It

Rubin discusses the failure of standard contracts courses to discuss contracts?or contracting behavior?at all, and he explains how socioeconomics can provide a way to bring these issues home for first year students. Rubin argues that there is a disconnect between contractual relationships and the law school Contracts course, that is illustrated by the structure of contemporary legal practice

What\u27s Wrong with Langdell\u27s Method, and What to Do About It

Here we are, at the beginning of the twenty-first century, using a model of legal education that was developed in the latter part of the nineteenth. Since that time, the nature of legal practice has changed, the concept of law has changed, the nature of academic inquiry has changed, and the theory of education has changed. Professional training programs in other fields have been redesigned many times to reflect current practice, theory, and pedagogy, but we legal educators are still doing the same basic thing we were doing one hundred and thirty years ago. Many law professors are conscientious and devoted teachers, and quite a few are inspired ones, but their efforts are constrained and hobbled by an educational model that treats the entire twentieth century as little more than a passing annoyance. There has, of course, been a certain amount of lower-level change in the model of legal education during this period. Law schools have added, although not integrated, clinical programs into the remainder of the curriculum. They have also introduced courses reflecting new developments in law, although they rarely have penetrated the sacrosanct first year. Moreover, the demographics of law schools have kept pace with those of other university departments. Law schools\u27 treat women, minorities, and gays is just as well, and sometimes better than other graduate school programs. Further, discrimination against Jews, which was rampant when the law school program was developed, is barely an institutional memory at present. Law school buildings have been regularly refurbished or rebuilt and are often some of the most modern and opulent facilities on campus; they are filled with up-to-date libraries, state-of-the-art audio-visual equipment, and sleek internet terminals. But the basic educational approach that law schools use remains essentially unchanged from the one that C.C. Langdell introduced at Harvard in the years following the Civil War

Criminal Injustice

As its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. In contrast, the author of this book, Jed S. Rakoff, is a sitting federal judge, and he provides a specifically judicial perspective. This appears in at least two of the book’s most notable features: its juxtaposition of its subject matter and its discussion of the way that general trends in our criminal law impact the work of judges

Extending Democracy to Corporate Governance and Beyond

This article proposes a different rationale for corporate democracy, one that extends more broadly to all forms of employment. It is based on an equivalence, not an analogy. The equivalence is that subordination feels essentially the same to an individual whether a public or a private entity is carrying it out. As recognized in the public arena, it undermines people’s dignity and autonomy, and at least threatens—and often produces—actual oppression. Based on this equivalence, this article proposes a different argument for corporate democracy. Proponents of democracy in the public sphere believe that the citizens of a nation should control its government. For the same reason, it can be argued that those who work for a living should control the institutions for which they work. Thus, the norms of democracy, when translated into the economic realm, yield the principle that no person should work for their livelihood on terms established by another person. This can be called the principle of popular economic sovereignty. The operational argument that can instantiate this assertion of equivalence between the state and the corporation is etiological. Both institutions, in their modern form, developed from Medieval corporativist thought. They are conceived as juridical persons, entities that are capable of independent action. As such, they have an equivalent capacity to dominate and oppress the individuals that they control. The way to provide these individuals with a sense of autonomy and protect them from oppression is to constitute them as a separate juridical entity that is authorized to control the state or the corporation, either directly or—in cases where the state or corporation is large—through chosen representatives