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Postmodern Legal Movements: Law and Jurisprudence At Century's End

Gary Minda
Copyright Date: 1995
Published by: NYU Press
Pages: 362
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  • Book Info
    Postmodern Legal Movements
    Book Description:

    What do Catharine MacKinnon, the legacy of Brown v. Board of Education, and Lani Guinier have in common? All have, in recent years, become flashpoints for different approaches to legal reform. In the last quarter century, the study and practice of law have been profoundly influenced by a number of powerful new movements; academics and activists alike are rethinking the interaction between law and society, focusing more on the tangible effects of law on human lives than on its procedural elements. In this wide-ranging and comprehensive volume, Gary Minda surveys the current state of legal scholarship and activism, providing an indispensable guide to the evolution of law in America.

    eISBN: 978-0-8147-6322-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Preface
    (pp. xi-xii)
  5. Introduction
    (pp. 1-10)

    After several decades of interdisciplinary work in academic legal scholarship, it is impossible for one not to notice how obscure theories of economics, sociology, philosophy, anthropology, literary criticism, and other fields have infected recent academic writing and thinking about law and adjudication, or what is commonly understood asjurisprudence.¹ Ever since the New Deal, legal studies have become more sophisticated and more eclectic.² This expanding eclecticism has brought about sharp debate in jurisprudence. Diversity and fragmentation of jurisprudence have been stimulated by a profession that has itself become splintered as a result of competition and rivalry between new jurisprudential movements,...

  6. Part One: Modern Jurisprudence, 1871–1980

    • 1. Origins of Modern Jurisprudence
      (pp. 13-23)

      Modern American jurisprudential studies began when the dean of Harvard University Law School, Christopher Columbus Langdell, published the first modern law school casebook, Selection of Cases on the Law of Contracts, in 1871. Langdell’s casebook ushered in the modern era because it offered a new methodology and pedagogy for law study that was nothing more than an expression of faith in the scientific method. He declared in the preface to his Contracts casebook: “It is indispensable to establish at least two things, first that law is a science; secondly that all the available materials of that science are contained in...

    • 2. Modern Conceptual Jurisprudence
      (pp. 24-43)

      During the first part of this century, the study of jurisprudence was like an inductive science: principles of law were pragmatically derived from the raw data of appellate opinions much in the same way that the laws of nature were derived from scientific experiments. Law students were instructed on how to dissect appellate court cases like medical students were instructed to dissect cadavers—both dissected for purposes of discovering the universal truth of their objects. The conceptualism of this era was also associated with the substantive due process tradition of constitutional law—a time when the Supreme Court incorporated common...

    • 3. Modern Normative Jurisprudence
      (pp. 44-61)

      During the 1960s, modern legal thinkers sought to be morenormative. They attempted to develop legal theories for instructing judges and lawyers on how to bring values of justice, fairness, social utility, etc., into their legal practices. Normative legal thought during the 1960s and 1970s was based on the conviction that legal theory and legal reason could make law more normative.¹ However, “despite its obvious desire to have worldly effects, worldly consequences, normative legal thought remains seemingly unconcerned that for all practical purposes, its only consumers are legal academics and perhaps a few law students—persons who are virtually never...

    • 4. Decline of Modern Jurisprudential Studies
      (pp. 62-80)

      Legal process and fundamental rights theories dominated much of modern jurisprudential discourse throughout the 1960s and 1970s. The average law teacher’s jurisprudence combined interest balancing, fundamental rights analysis, and institutional coordination between courts, agencies, and the legislature.¹ Legal studies at many law schools were regarded as an autonomous discipline because legal reasoning and legal methods were thought to be sufficiently distinct from the methods of other academic disciplines in the general university. The autonomy of legal thought was relatively secure as the 1970s began, but then events, both internal and external to law, caused legal thinkers to question their faith...

  7. Part Two: Jurisprudential Movements of the 1980s

    • 5. Law and Economics
      (pp. 83-105)

      The sources responsible for the expansion and transformation of the law and economics movement of the 1970s and 1980s have never been adequately explained. One fact remains clear: this movement coincided with the rise of interdisciplinary legal studies and the growing disenchantment with the legal process and fundamental rights schools. In the midst of the disintegration of and disillusionment with mainstream jurisprudence, legal scholars looked outside law to economics for law’s missing authority and the autonomy of legal discourse. Of all the social sciences, economics was the most promising candidate offering “right answers” for law’s problems.

      While the use of...

    • 6. Critical Legal Studies
      (pp. 106-127)

      While law and economics attracted the attention of legal scholars, a distinct movement in legal studies established itself as a major critic of both traditional and law and economics scholarship. This new academic movement—critical legal studies (CLS—surfaced in 1976 when a group of legal scholars met at the University of Wisconsin Law School and formed a social and professional network calledThe Conference on Critical Legal Studies.¹ The diverse intellectual projects of these writers established the thematic character of this movement. The intellectual component of this movement known as CLS continues to grow and expand, despite the fact...

    • 7. Feminist Legal Theory
      (pp. 128-148)

      In the late 1970s, a powerful new theory of jurisprudence also emerged offering a distinctively feminist perspective on law and adjudication. Feminist jurisprudence grew out of the feminist liberation movement of the 1960s, as feminists critiqued law and society from a woman’s perspective. There are a number of stereotypes and misconceptions about what it means to be afeminist. As Leslie Bender explained: “Feminists are portrayed as bra-burners, man-haters, sexists, and castrators. . . . We are characterized as bitchy, demanding, aggressive, confrontational, and uncooperative, as well as overly sensitive and humorless. No wonder many women, particularly many career women,...

    • 8. Law and Literature
      (pp. 149-166)

      Thelaw and literaturemovement can be traced to the 1973 publication of James Boyd White's The legal imagination,¹ a book that advanced the idea that the study of literature should be part of legal education, because literary studies have something distinctive to say about law and adjudication. Law and literature was previously a marginal subject consisting mainly of the study of stories about law found in the great works of classical literature.² Law and literature practitioners, following the example of Dean Wigmore,³ explored the way law was used in the great literary classics of Dickens, Kafka, and Melville, and...

    • 9. Critical Race Theory
      (pp. 167-186)

      As the 1980s came to a close, a new movement in legal thought emerged offering a new epistemological source for law derived from the “actual experience, history, culture, and intellectual tradition of people of color.”¹ This movement developed as racial-minority scholars within critical legal studies and other progressive networks established “an African American movement”² in legal studies to approach problems of race from the unique perspective of African Americans. Critical race theorists asserted that it was time for “different and blacker voices [to] speak new words and remake old legal doctrines.”³ The critical race theory movement emerged as minority scholars...

  8. Part Three: Postmodern Jurisprudence, 1990s and Beyond

    • 10. Jurisprudence in Transition
      (pp. 189-207)

      The jurisprudential movements of the 1980s deepened and advanced a process of crisis and transition in modern jurisprudence. The most striking facet of this transformation has been the success of new forms of jurisprudential discourse or “law talk” in penetrating, subverting, and decentering the conventional forms of legal discourse. The proliferation of different jurisprudential discourses has erased the lines between description and advocacy, making it much more difficult for traditionalists to maintain their belief in neutral and objective law. A new understanding of language and interpretation has fired the imagination of legal scholars as they reexamined and critiqued the polar...

    • 11. Reaction of Modern Legal Scholars
      (pp. 208-223)

      History indicates that when a new theory or paradigm appears to challenge the view and methods of an established theory or paradigm, a crisis in confidence emerges, provoking a response from the mainstream.¹ The reason is clear. Professional reputations and careers are at stake; the old guard must hold off the challenge posed by the “Young Turks” in order to maintain their status and privilege. It is thus not surprising that new movements in legal thought have provoked heated response from a number of distinguished legal scholars. Some questioned the new critics’ professional and ethical commitment to law, and the...

    • 12. Postmodern Jurisprudence
      (pp. 224-246)

      Postmodernism is an elusive idea that is not easily defined. Postmodernism is neither a theory nor a concept; it is rather a skeptical attitude or aesthetic that “distrusts all attempts to create large-scale, totalizing theories in order to explain social phenomena.” ¹ Postmodernists resist the idea that “there is a ‘real’ world or legal system ‘out there,’ perfected, formed, complete and coherent, waiting to be discovered by theory.”² As developed in linguistics, literary theory, art, and architecture, postmodernism is also a style that signals the end of an era, the passing of the modern age.³ It marks a certain “chronological...

  9. Conclusion: Jurisprudence at Century’s End
    (pp. 247-258)

    Academic trends in legal scholarship do not occur in a vacuum, nor are law schools and legal scholars autonomous. To understand what has been going on in contemporary legal theory, one must look to what has been going on at the university. American university campuses have recently witnessed a form of organized dissent not seen since the turbulent 1960s and 1970s. Commentators report that “[a] n intellectual and cultural revolution is now under way at American Universities.”¹ The revolution has been stirred in part by cultural changes unfolding in American society brought about by thediversity movement. This movement consists...

  10. Notes
    (pp. 259-342)
  11. Index
    (pp. 343-350)
  12. Back Matter
    (pp. 351-351)