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The American LawyerThere is much in this compilation to admire, and it would actually make sense to make every American law professor . . . read and ponder these pieces.
— Stephen B. Presser
This anthology presents, for the first time, full texts of the twenty most important works of American legal thought since 1890. Drawing on a course the editors teach at Harvard Law School, the book traces the rise and evolution of a distinctly American form of legal reasoning. These are the articles that have made these authors—from Oliver Wendell Holmes, Jr., to Ronald Coase, from Ronald Dworkin to Catherine MacKinnon—among the most recognized names in American legal history....
This anthology presents, for the first time, full texts of the twenty most important works of American legal thought since 1890. Drawing on a course the editors teach at Harvard Law School, the book traces the rise and evolution of a distinctly American form of legal reasoning. These are the articles that have made these authors—from Oliver Wendell Holmes, Jr., to Ronald Coase, from Ronald Dworkin to Catherine MacKinnon—among the most recognized names in American legal history.
These authors proposed answers to the classic question: "What does it mean to think like a lawyer—an American lawyer?" Their answers differed, but taken together they form a powerful brief for the existence of a distinct and powerful style of reasoning—and of rulership. The legal mind is as often critical as constructive, however, and these texts form a canon of critical thinking, a toolbox for resisting and unravelling the arguments of the best legal minds. Each article is preceded by a short introduction highlighting the article's main ideas and situating it in the context of its author's broader intellectual projects, the scholarly debates of his or her time, and the reception the article received.
Law students and their teachers will benefit from seeing these classic writings, in full, in the context of their original development. For lawyers, the collection will take them back to their best days in law school. All readers will be struck by the richness, the subtlety, and the sophistication with which so many of what have become the clichés of everyday legal argument were originally formulated.
Part I: Attacking the Old Order: 1900-1940
Oliver Wendell Holmes, "The Path of the Law," 10 Harvard Law Review 457 (1897) 19
Wesley Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 Yale Law Journal 16 (1913) 45
Robert Hale, "Coercion and Distribution in a Supposedly Noncoercive State," 38 Political Science Quarterly 470 (1923) 83
John Dewey, "Logical Method and Law," 10 Cornell Law Quarterly 17 (1924) 111
Karl Llewellyn, "Some Realism About Realism-Responding to Dean Pound," 44 Harvard Law Review 1222 (1931) 131
Felix Cohen, "Transcendental Nonsense and the Functional Approach," 35 Columbia Law Review 809 (1935) 163
Part II: A New Order: The Legal Process, Policy, and Principle: 1940-1960
Lon L. Fuller, "Consideration and Form," 41 Columbia Law Review 799 (1941) 207
Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, Problem No. 1 (unpublished manuscript, 1958) 241
Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harvard Law Review 1 (1959) 311
Part III: The Emergence of Eclecticism: 1960-2000
Policy and Economics
Ronald H. Coase, "The Problem of Social Cost," 3 Journal of Law and Economics 1 (1960) 353
Guido Calabresi and Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,"
85 Harvard Law Review 1089 (1972) 401
The Law and Society Movement
Stewart Macaulay, "Non-Contractual Relations in Business: A Preliminary Study," 28 American Sociological Review 55 (1963) 445
Marc Galanter, "Why the'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," 9 Law and Society Review 95 (1974) 481
Liberalism: Interpretation and the Role of the Judge
Ronald Dworkin, "Hard Cases," 88 Harvard Law Review 1057 (1975) 549
Abram Chayes, "The Role of the Judge in Public Law Litigation," 89 Harvard Law Review 1281 (1976) 603
Critical Legal Studies
Duncan Kennedy, "Form and Substance in Private Law Adjudication," 88 Harvard Law Review 1685 (1976) 647
Liberalism: Legal Philosophy and Ethics
Robert Cover, "Violence and the Word," 95 Yale Law Journal 1601 (1986) 733
Frank Michelman, "Law's Republic," 97 Yale Law Journal 1493 (1988) 777
Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State: An Agenda for Theory," 7:3 Signs: Journal of Women in Culture and Society 515 (1982) 829
Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State:
Toward a Feminist Jurisprudence," 8 Signs: Journal of Women, Culture, and Society 635 (1983) 869
Kimberl? Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds., "Introduction," Critical Race Theory: The
Key Writings that Formed the Movement, The New Press,
New York, 1996 at xiii-xxxii 887