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Legal Canons

Legal Canons

J. M. Balkin
Sanford Levinson
Copyright Date: 2000
Published by: NYU Press
Pages: 444
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  • Book Info
    Legal Canons
    Book Description:

    Every discipline has its canon: the set of standard texts, approaches, examples, and stories by which it is recognized and which its members repeatedly invoke and employ. Although the last twenty-five years have seen the influence of interdisciplinary approaches to legal studies expand, there has been little recent consideration of what is and what ought to be canonical in the study of law today. Legal Canons brings together fifteen essays which seek to map out the legal canon and the way in which law is taught today. In order to understand how the twin ideas of canons and canonicity operate in law, each essay focuses on a particular aspect, from contracts and constitutional law to questions of race and gender. The ascendance of law and economics, feminism, critical race theory, and gay legal studies, as well as the increasing influence of both rational-actor methodology and postmodernism, are all scrutinized by the leading scholars in the field. A timely and comprehensive volume, Legal Canons articulates the need for, and means to, opening the debate on canonicity in legal studies. Table of Contents

    eISBN: 978-0-8147-0903-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. PART I. Introduction

    • Chapter 1 Legal Canons: An Introduction
      (pp. 3-44)
      J. M. Balkin and Sanford Levinson

      To some readers, a discussion of “legal canons” might suggest a treatise on church law, or perhaps, for creative spellers, a discussion of gun control. Our subject is somewhat different. It concerns what is and what ought to be canonical in the study of law. In our view, there is no better way to understand a discipline—its underlying assumptions, its current concerns and anxieties—than to study what its members think is canonical to that discipline. The study of canons and canonicity is the key to the secrets of a culture and its characteristic modes of thought.¹

      In the...

  5. PART II. The Canon in the Curriculum

    • Chapter 2 Empire or Residue: Competing Visions of the Contractual Canon
      (pp. 47-65)
      Ian Ayres

      Is the domain of contract waxing or waning? Lawrence Friedman’s pathbreaking 1965 bookContract Law in Americacharacterized contract law as covering a residual category of relatively unimportant transactions. He argued that whenever particular types of transactions became sufficiently salient—such as those concerning employment or insurance—specialized regulation was promulgated that “robbed contract [law] of its subject-matter.”¹ Nine years later, Grant Gilmore expressed this idea similarly inThe Death of Contract: “[T]he general law of contract is merely a residual category—what is left over after all the specialized bodies of law have been added up.”²

      In stark contrast...

    • Chapter 3 Canons of Property Talk, or, Blackstone’s Anxiety
      (pp. 66-103)
      Carol M. Rose

      How do legal scholars talk about property? Here is one set of lines they are quite likely to quote:

      There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.¹

      The author of this statement, of course, was William Blackstone, who made it early in the second volume of his weighty and influentialCommentaries on the Laws of England,...

    • Chapter 4 Vanished from the First Year: Lost Torts and Deep Structures in Tort Law
      (pp. 104-129)
      Martha Chamallas

      Changes to the mandatory first-year curriculum of law schools are rare and tend to be of the small-order variety, rather than fundamental. In the past few years, one such minitrend has been to cut down on the number of hours devoted to torts, as part of a more general streamlining of the first-year package of courses. The once-standard two-course, six-hour sequence is now being replaced by a single torts course of four hours. Forced to slash topics from their torts syllabi, torts professors have become more self-conscious about what they regard as crucial to their students’ appreciation of tort law...

    • Chapter 5 Criminal Law
      (pp. 130-154)
      Robert Weisberg

      I write in the imperative (more modestly, in the exhortative) in answer to the question, What must one read to understand our criminal law? And since this essay will address the relationship between desert and utility, let “canon” here mean a combination of those works most deserving to be read for their merit and those mostusefulto read, even as only data (though crucial data).

      Few associate Blackstone with the criminal law, but read the section of hisCommentarieson “ Public Wrongs.”¹ You will be chastened: However much we believe in elemental principles, we are all probably anti-Langdellian...

    • Chapter 6 Teaching American Civil Procedure since 1779
      (pp. 155-183)
      Paul D. Carrington

      If there is a traditional law school curriculum, it has no author. In its structure, it expresses no coherent premise. In its details, it is the result of myriad responses of teachers to their students. While students are seldom aware of the power they exercise, they hold their teachers in the same thralldom that other audiences impose on artists performing before them. Moral cowardice tends to be the standard of such industries. For this reason if no other, the curriculum, like other legal institutions, is the product of experience, not logic.

      This is not to say that individual teachers have...

    • Chapter 7 Of Coase and the Canon: Reflections on Law and Economics
      (pp. 184-208)
      Daniel A. Farber

      One highlight of my environmental law class is the day I teach the Coase Theorem.¹ I introduce Coase right after I cover a classic nuisance case,Atlantic Cement Co. v. Boomer.² The issue inBoomerwas whether a court should close a pollution source when the company’s economic value is much greater than the measurable harm to the plaintiffs. The students usually disagree strongly with the court’s ruling in favor of the company. After allowing the spirited discussion to run its course, I pull my surprise. “Does it really matter,” I ask, “how the court rules?” Then, simplifying a bit...

  6. PART III. The Canon and Groups

    • Chapter 8 Race Relations Law in the Canon of Legal Academia
      (pp. 211-237)
      Randall Kennedy

      Should a course on race relations law be part of the curricular canon of a law school? If so, what should such a course offer? If such a course is offered, with what political and pedagogical attitude should it be taught? These are the primary questions addressed in this essay.

      Law schools should equip students with knowledge and techniques that the legal academy is well positioned to explore and impart and that will be of benefit to society. From this premise it follows that a law school should offer a course that investigates the ways in which race relations have...

    • Chapter 9 Recognizing Race in the American Legal Canon
      (pp. 238-265)
      Fran Ansley

      Sometime during my second year in law school, around 1976, I had a powerful encounter with the Fourteenth Amendment. It started in a class called Con Law II, in which I understood that we were to study primarily the Bill of Rights. Coming into the course, I already had a vague idea about what some of those rights might be—certainly I felt favorably disposed toward them. But my overall grasp was, to put it charitably, weak. I did recall that we had discussed at length something called “due process” in our civil procedure class the year before, in the...

    • Chapter 10 Feminist Canon
      (pp. 266-302)
      Katharine T. Bartlett

      Like any intellectual movement concerned with what comes to be understood as important, true, and just, feminists are concerned about canon. Feminist scholars in the field of law, like their counterparts in literature, science, history, philosophy, psychology, and virtually every other discipline,¹ have challenged the existing canons of their disciplines for defining what is important, what is true, and what is just, in terms that systematically omit, devalue, and subordinate women. They have found errors of fact, they have disproved assertions of objectivity, and they have questioned assumed values. Along the way, they have begun to develop a field of...

    • Chapter 11 Homosexuals, Torts, and Dangerous Things
      (pp. 303-328)
      Katherine M. Franke

      Negligent, intentional, and strict liability torts. From a canonical standpoint, whatever else one might teach, it is not a first-year law school torts course if these three concepts are not covered. Torts has a canon, even a Restatement.¹ Yet a canon evolves only after some criterion of value has been established such that privileged texts can be identified according to an authoritative standard. Thus, a canon is the result of a process by which a rule of recognition identifies authoritative texts.

      At what point can we say that torts became a legal field and an intact legal subject, the canon...

  7. PART IV. The Constitutional Canon

    • Chapter 12 The Constitutional Canon
      (pp. 331-373)
      Philip Bobbitt

      Texts may speak, but they do not decide. When we wish to resolve a dispute according to law, we must perforce interpret the Constitution because that is necessary in order to apply the provisions of the Constitution that underlie all American law. Thusconstitutional interpretationis the means by which legal conclusions are ultimately drawn.

      Although interpretation is unavoidable, however, this does not mean that just any method will do; quite to the contrary, there are well-defined rules that govern the uses of the Constitution in resolving disputes. These rules generate the legitimate forms of legal argument. Certain parts of...

    • Chapter 13 The Canon in Constitutional Law
      (pp. 374-399)
      Suzanna Sherry

      Vertigo: are we talking about can(n)ons with twon’s or three? A casual peruser of the literature would be forgiven a momentary bewilderment. The canons are everywhere under attack. Their detractors view them as loaded weapons in the service of hierarchy, hegemony, and oppression. Canons (and anticanons) are one of the weapons of choice in what has been labeled “the culture wars”: the struggle for control of the hearts and minds of the educational system of the United States, and ultimately of its legal and political apparatus. To write an essay prescribing “the canon in constitutional law” is to take...

    • Chapter 14 Constitutional Canons and Constitutional Thought
      (pp. 400-434)
      J. M. Balkin and Sanford Levinson

      In March of 1860, Frederick Douglass addressed an audience in Glasgow, Scotland.¹ Douglass, the son of a white man and a part-Indian slave, had escaped to freedom, had taught himself to read and write, and by 1860 had become one of the most prominent abolitionists in the United States.² His subject that day in Glasgow was how to interpret the Constitution of the United States. In particular, Douglass asked whether the Constitution protected the institution of slavery or whether, on the contrary, the correct reading of the Constitution made it an antislavery document.³

      Douglass spoke three years after the Supreme...

  8. Contributors
    (pp. 435-436)
  9. Permissions
    (pp. 437-438)
  10. Index
    (pp. 439-443)