Beyond The Formalist Realist Divide

Author : Brian Z. Tamanaha
Publisher : Princeton University Press
Page : 265 pages
File Size : 50,7 Mb
Release : 2009-10-26
Category : Law
ISBN : 9781400831982

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Beyond the Formalist-Realist Divide by Brian Z. Tamanaha Pdf

According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide. Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism. Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

Author : Roscoe Pound
Publisher : Unknown
Page : 126 pages
File Size : 44,5 Mb
Release : 1908
Category : Jurisprudence
ISBN : HARVARD:32044031888290

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Mechanical Jurisprudence ... by Roscoe Pound Pdf

Author : Sam Rose
Publisher : Penn State Press
Page : 221 pages
File Size : 40,7 Mb
Release : 2019-05-10
Category : Art
ISBN : 9780271084305

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Art and Form by Sam Rose Pdf

This important new study reevaluates British art writing and the rise of formalism in the visual arts from 1900 to 1939. Taking Roger Fry as his starting point, Sam Rose rethinks how ideas about form influenced modernist culture and the movement’s significance to art history today. In the context of modernism, formalist critics are often thought to be interested in art rather than life, a stance exemplified in their support for abstract works that exclude the world outside. But through careful attention to early twentieth-century connoisseurship, aesthetics, art education, design, and art in colonial Nigeria and India, Rose builds an expanded account of form based on its engagement with the social world. Art and Form thus opens discussions on a range of urgent topics in art writing, from its history and the constructions of high and low culture to the idea of global modernism. Rose demonstrates the true breadth of formalism and shows how it lends a new richness to thought about art and visual culture in the early to mid-twentieth century. Accessibly written and analytically sophisticated, Art and Form opens exciting new paths of inquiry into the meaning and lasting importance of formalism and its ties to modernism. It will be invaluable for scholars and enthusiasts of art history and visual culture.

Author : Brian Z. Tamanaha
Publisher : University of Chicago Press
Page : 253 pages
File Size : 51,8 Mb
Release : 2012-06-18
Category : Education
ISBN : 9780226923628

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Failing Law Schools by Brian Z. Tamanaha Pdf

“An essential title for anyone thinking of law school or concerned with America's dysfunctional legal system.” —Library Journal On the surface, law schools today are thriving. Enrollments are on the rise and law professors are among the highest paid. Yet behind the flourishing facade, law schools are failing abjectly. Recent front-page stories have detailed widespread dubious practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession. Addressing all these problems and more is renowned legal scholar Brian Z. Tamanaha. Piece by piece, Tamanaha lays out the how and why of the crisis and the likely consequences if the current trend continues. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The average law school graduate’s debt is around $100,000—the highest it has ever been—while the legal job market is the worst in decades. Growing concern with the crisis in legal education has led to high-profile coverage in the Wall Street Journal and the New York Times, and many observers expect it soon will be the focus of congressional scrutiny. Bringing to the table his years of experience from within the legal academy, Tamanaha provides the perfect resource for assessing what’s wrong with law schools and figuring out how to fix them. “Failing Law Schools presents a comprehensive case for the negative side of the legal education debate and I am sure that many legal academics and every law school dean will be talking about it.” —Stanley Fish, Florida International University College of Law

Author : Neil Duxbury
Publisher : Unknown
Page : 544 pages
File Size : 45,5 Mb
Release : 1995
Category : Language Arts & Disciplines
ISBN : UVA:X002701573

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Patterns of American Jurisprudence by Neil Duxbury Pdf

This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has evolved as a collection of themes which reflects broader American intellectual and cultural concerns.

Author : Hanoch Dagan
Publisher : Oxford University Press
Page : 247 pages
File Size : 45,5 Mb
Release : 2013-09
Category : Law
ISBN : 9780199890699

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Reconstructing American Legal Realism & Rethinking Private Law Theory by Hanoch Dagan Pdf

This book demonstrates how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

Author : Seth Vannatta
Publisher : Rowman & Littlefield
Page : 216 pages
File Size : 54,6 Mb
Release : 2019-06-26
Category : Philosophy
ISBN : 9781498561259

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The Pragmatism and Prejudice of Oliver Wendell Holmes Jr. by Seth Vannatta Pdf

This book investigates the extent to which various scholarly labels are appropriate for the work of Oliver Wendell Holmes, Jr. As Louis Menand wrote, “Holmes has been called a formalist, a positivist, a utilitarian, a realist, a historicist, a pragmatist, (not to mention a nihilist).” Each of the eight chapters investigates one label, analyzes the secondary texts that support the use of the term to characterize Holmes’s philosophy, and takes a stand on whether or not the category is appropriate for Holmes by assessing his judicial and nonjudicial publications, including his books, articles, and posthumously published correspondences. The thrust of the collection as a whole, nevertheless, bends toward the stance that Holmes is a pragmatist in his jurisprudence, ethics, and politics. The final chapter, by Susan Haack, makes that case explicitly. Edited by Seth Vannatta, this book will be of particular interest to students and faculty working in law, jurisprudence, philosophy, intellectual history, American Studies, political science, and constitutional theory.

Author : Justin Zaremby
Publisher : Bloomsbury Publishing USA
Page : 192 pages
File Size : 48,9 Mb
Release : 2013-12-05
Category : Political Science
ISBN : 9781441135728

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Legal Realism and American Law by Justin Zaremby Pdf

In the first part of the 20th century, a group of law scholars offered engaging, and occasionally disconcerting, views on the role of judges and the relationship between law and politics in the United States. These legal realists borrowed methods from the social sciences to carefully study the law as experienced by lawyers, judges, and average citizens and promoted a progressive vision for American law and society. Legal realism investigated the nature of legal reasoning, the purpose of law, and the role of judges. The movement asked questions which reshaped the study of jurisprudence and continue to drive lively debates about the law and politics in classrooms, courtrooms, and even the halls of Congress. This thorough analysis provides an introduction to the ideas, context, and leading personalities of legal realism. It helps situate an important movement in legal theory in the context of American politics and political thought and will be of great interest to students of judicial politics, American constitutional development, and political theory.

Author : Juliette Gregory Duara
Publisher : Routledge
Page : 220 pages
File Size : 49,7 Mb
Release : 2017-10-06
Category : Social Science
ISBN : 9781351782616

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Gender Justice and Proportionality in India by Juliette Gregory Duara Pdf

For a judiciary in a democracy, dispensing justice is not only about doing justice, but also about showing that justice is being done; it is about giving reasons and creating a "culture of justification". The question becomes how to nurture such a culture. A number of liberal democratic jurisdictions have answered this question in part with the adoption of the multi-step method of evaluating the constitutionality of legislative infringements on fundamental rights widely known as Proportionality Analysis. Under Proportionality Analysis courts must engage in a structured process of reasoning. This book deals with Gender Justice and Proportionality Analysis in India. The author argues that the Supreme Court of India should consider adopting Proportionality Analysis for the adjudication of the fundamental right to sex equality in Indian courts. The book includes an analysis of Canadian and South African Proportionality Analysis and makes some suggestions on how an Indian Proportionality Analysis could be generated using this comparative investigation. Additionally, the book proposes ways of applying the effects of socio-political context on doctrine, as well as doctrine’s interpretive impact on adjudicated outcomes for gender, thus making a contribution to feminist jurisprudence. Finally, the author analyses Indian gender equality jurisprudence, demonstrating the inadequacies of the current doctrinal framework for achieving the goal of substantive gender equality and suggesting ways in which an Indian Proportionality Analysis might be fashioned to address these inadequacies. A novel examination of the gender situation in India in comparative perspective, this book will be of interest to academics in the field of Gender Studies, Asian and Comparative Law and South Asian studies.

Author : Andrew Robertson,James Goudkamp
Publisher : Bloomsbury Publishing
Page : 504 pages
File Size : 52,6 Mb
Release : 2019-11-28
Category : Law
ISBN : 9781509929474

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Form and Substance in the Law of Obligations by Andrew Robertson,James Goudkamp Pdf

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.

Author : Ingo Venzke,Kevin Jon Heller
Publisher : Oxford University Press
Page : 577 pages
File Size : 45,7 Mb
Release : 2021
Category : Law
ISBN : 9780192898036

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Contingency in International Law by Ingo Venzke,Kevin Jon Heller Pdf

This book poses a question that is deceptive in its simplicity: could international law have been otherwise? Today, there is hardly a serious account left that would consider the path of international law to be necessary, and that would refute the possibility of a different law altogether. But behind every possibility of the past stands a reason why the law developed as it did. Only with a keen sense of why things turned out the way they did is it possible to argue about how the law could plausibly have turned out differently. The search for contingency in international law is often motivated, as it is in this volume, by a refusal to resign to the present state of affairs. By recovering past possibilities, this volume aims to inform projects of transformative legal change for the future. The book situates that search for contingency theoretically and carries it into practice across many fields, with chapters discussing human rights and armed conflict, migrants and refugees, the sea and natural resources, foreign investments and trade. In doing so, it shows how politically charged questions about contingency have always been.

Author : Muhammad Azeem
Publisher : Springer
Page : 278 pages
File Size : 45,9 Mb
Release : 2017-07-02
Category : Law
ISBN : 9789811038457

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Law, State and Inequality in Pakistan by Muhammad Azeem Pdf

Through a detailed historical and empirical account of post-independence years, this book offers a new assessment of the role of the judiciary in Pakistani politics. Instead of seeing the judiciary as helpless or struggling against an authoritarian state, it argues that the judiciary has been a crucial link in the creation of state and political inequality in Pakistan. This rubs against the central role given to the judiciary in developing countries to fix the ‘corrupt politicians and stubborn bureaucracies’ in the World Bank’s ‘Good Governance’ paradigm and rule of law initiatives. It also challenges the contemporary legal and judicial discourse that extols the virtues of Public Interest Litigation. While the book’s core analysis is a critique of the contemporary liberal legal project, it also adds to the critical tradition of social theory by linking political economy to a social theory of law. The theoretical aspect of the study is applicable to any developing society whose judiciary is going through foreign-sponsored ‘rule of law’ judicial reforms.

Author : Andrew Porwancher
Publisher : University of Missouri Press
Page : 235 pages
File Size : 49,9 Mb
Release : 2017-06-30
Category : Law
ISBN : 9780826273635

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John Henry Wigmore and the Rules of Evidence by Andrew Porwancher Pdf

Honorable Mention, 2017 Scribes Book Award, The American Society of Legal Writers At the dawn of the twentieth century, the United States was reeling from the effects of rapid urbanization and industrialization. Time-honored verities proved obsolete, and intellectuals in all fields sought ways to make sense of an increasingly unfamiliar reality. The legal system in particular began to buckle under the weight of its anachronism. In the midst of this crisis, John Henry Wigmore, dean of the Northwestern University School of Law, single-handedly modernized the jury trial with his 1904-5 Treatise onevidence, an encyclopedic work that dominated the conduct of trials. In so doing, he inspired generations of progressive jurists—among them Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Felix Frankfurter—to reshape American law to meet the demands of a new era. Yet Wigmore’s role as a prophet of modernity has slipped into obscurity. This book provides a radical reappraisal of his place in the birth of modern legal thought.

Author : Markus D. Dubber,Christopher Tomlins
Publisher : Oxford University Press
Page : 1152 pages
File Size : 51,6 Mb
Release : 2018-07-26
Category : Law
ISBN : 9780192513144

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The Oxford Handbook of Legal History by Markus D. Dubber,Christopher Tomlins Pdf

Some of the most exciting and innovative legal scholarship has been driven by historical curiosity. Legal history today comes in a fascinating array of shapes and sizes, from microhistory to global intellectual history. Legal history has expanded beyond traditional parochial boundaries to become increasingly international and comparative in scope and orientation. Drawing on scholarship from around the world, and representing a variety of methodological approaches, areas of expertise, and research agendas, this timely compendium takes stock of legal history and methodology and reflects on the various modes of the historical analysis of law, past, present, and future. Part I explores the relationship between legal history and other disciplinary perspectives including economic, philosophical, comparative, literary, and rhetorical analysis of law. Part II considers various approaches to legal history, including legal history as doctrinal, intellectual, or social history. Part III focuses on the interrelation between legal history and jurisprudence by investigating the role and conception of historical inquiry in various models, schools, and movements of legal thought. Part IV traces the place and pursuit of historical analysis in various legal systems and traditions across time, cultures, and space. Finally, Part V narrows the Handbooks focus to explore several examples of legal history in action, including its use in various legal doctrinal contexts.

Author : William Twining
Publisher : Cambridge University Press
Page : 667 pages
File Size : 40,6 Mb
Release : 2012-09-17
Category : Biography & Autobiography
ISBN : 9781107023383

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Karl Llewellyn and the Realist Movement by William Twining Pdf

First published in 1973, Karl Llewellyn and the Realist Movement is a classic account of American Legal Realism and its leading figure. Karl Llewellyn is the best known and most substantial jurist of the group of lawyers known as the American Realists. He made important contributions to legal theory, legal sociology, commercial law, contract law, civil liberties and legal education. This intellectual biography sets Llewellyn in the broad context of the rise of the American Realist Movement and contains an overview of his life before focusing on his most important works, including The Cheyenne Way, The Bramble Bush, The Common Law Tradition and the Uniform Commercial Code. In this second edition the original text is supplemented with a preface by Frederick Schauer and an afterword in which William Twining gives a fascinating account of the making of the book and comments on developments in relevant legal scholarship over the past forty years.