Patterns Of American Jurisprudence

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 reflect broader American intellectual and cultural concerns.

A renowned legal historian's collection of astute and timeless essays on such subjects as the process, method and debates of legal history; the truth about Holmes and Brandeis; legal realism & its critics; the origins of tort law; appellate opinions as research sources; Brown v. Board and the role of Earl Warren; and the development of gay rights in U.S. constitutional law. Quality digital format.

The contemporary US legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.

This work represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought.

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.

This book explains how the debate over originalism emerged from the interaction of constitutional theory, U.S. Supreme Court decisions, and American political development. Refuting the contention that originalism is a recent concoction of political conservatives like Robert Bork, Johnathan O'Neill asserts that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history. Originalism in American Law and Politics is distinguished by its historical approach to the topic. Drawing on constitutional commentary and treatises, Supreme Court and lower federal court opinions, congressional hearings, and scholarly monographs, O'Neill's work will be valuable to historians, academic lawyers, and political scientists.

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.

Amid the halls of Harvard Law, a professor of legend, James Bradley Thayer, shaped generations of students from 1874 to 1902. His devoted protégés included future Supreme Court justices, appellate judges, and law school deans. The legal giants of the Progressive Era—Holmes, Brandeis, and Hand, to name only a few—came under Thayer’s tutelage in their formative years. He imparted to his pupils a novel jurisprudence, attuned to modern realities, that would become known as legal realism. Thayer’s students learned to confront with candor the fallibility of the bench and the uncertainty of the law. Most of all, he instilled in them an abiding faith that appointed judges must entrust elected lawmakers to remedy their own mistakes if America’s experiment in self-government is to survive. In the eyes of his loyal disciples, Thayer was no mere professor; he was a prophet bequeathing to them sacred truths. His followers eventually came to preside over their own courtrooms and classrooms, and from these privileged perches they remade the law in Thayer’s image. Thanks to their efforts, Thayer’s insights are now commonplace truisms. The Prophet of Harvard Law draws from untouched archival sources to reveal the origins of the legal world we inhabit today. It is a story of ideas and people in equal measure. Long before judges don their robes or scholars their gowns, they are mere law students on the cusp of adulthood. At that pivotal phase, a professor can make a mark that endures forever after. Thayer’s life and legacy testify to the profound role of mentorship in shaping the course of legal history.