Legal Theory Blog

Sciullo on the Myth of Atlantis

Nick J. Sciullo has posted Atlantean Prose and the Search for Democracy (The Crit: A Critical Legal Studies Journal, Vol. 2, 2009) on SSRN.  Here is the abstract:

Atlantis, the Lost City, has been a focal point of folklore, archeological inquiry, literary criticism, and mystic interpretation. It has boggled the brilliant, confused scientists, and sparked the interest of children. "Skeptics, archaeologists, geologists, and anthropologists may rant and rave, but the myth of Atlantis endures. In every generation, someone emerges to champion the cause and to embroider the story." But the significance of Atlantean prose as an avenue through which to best understand critical legal thought has not been explored in depth. To be sure, there have been numerous books, articles, and opinions analyzing Atlantis, but little attention has been given to the legal significance of this type of storytelling. What does it mean to engage myth? How can legal scholars and practitioners learn from and use lessons of antiquity? Where does modern narrative theory fit into traditional legal discourse? I ask the reader to dive into the depths with me and consider what Atlantis can teach us about democracy, critical legal studies, and the rule of law.

Narula on Caste & Critical Race Theory

Smita Narula (NYU School of Law) posted Equal by Law, Unequal by Caste: The 'Untouchable' Condition in Critical Race Perspective (Wisconsin International Law Journal, Vol. 26, p. 255) on SSRN. Here is the abstract:

Caste-based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that has long been labeled the "world's largest democracy;" a progressive and protective constitution; a system of laws designed to proscribe and punish acts of discrimination on the basis of caste; broad-based programs of affirmative action that include constitutionally mandated reservations or quotas for Dalits, or so-called "untouchables;" a plethora of caste-conscious measures designed to ensure the economic "upliftment" of Dalits; and an aggressive economic liberalization campaign to fuel India's economic growth. This Article seeks to answer the question of how and why this seemingly foolproof recipe for equality has done little to mitigate centuries of oppression and exclusion for over 167 million Dalits at the bottom of India's caste system. To the contrary, caste-based discrimination, inequality, and oppression comfortably survive and even thrive in modern day India. The Article further asks whether the clarion call of "Dalit Rights are Human Rights," increasingly heeded by the international community and heard around the world, can now succeed where all else has seemingly failed. It concludes that "Dalit Rights are Human Rights" is not a self-fulfilling prophecy but one that can galvanize a project of social transformation so long as it does not restrict itself to the constraints of the legal and moral regime in which this struggle now lives. The Article situates "caste" in a global context, particularly in the context of debates around affirmative action, racial inequality, and racial justice in the United States.

Dent & Cook on Stare Decisis & Foucault

Chris Dent and Ian Cook (University of Melbourne - Law School) have posted Stare Decisis, Repetition and Understanding Common Law (Griffith Law Review, Vol. 16, No. 1, pp. 131-150, 2007) on SSRN. Here is the abstract:

The works of Michel Foucault have not, so far, been employed so as to enable an adequate understanding of the functioning of the law. This article begins to remedy this situation. Past uses of Foucault's work have failed to provide a satisfactory account of the relationship between the juridical and the disciplinary aspects of "the law" in general. The application of his ideas to the practice of the common law offers a way forward. In this article, we use Foucault's ideas of discursive formations and discursive practices to understand the operation of the doctrine of stare decisis in the common law. It is uncontroversial to assert that the doctrine is difficult to define - this analysis demonstrates that this signifies its "always/already" nature. The understanding applied here indicates that stare decisis is best seen as a set of discursive practices - the most significant of which relates to the repetition of past legal statements. The doctrine, as a result, is both fundamental to the operation of the common law as a discursive formation and constitutive of those who participate in, and perpetuate, it - the lawyers and judges.

Legal Theory Bookworm

The Legal Theory Bookworm recommends Legal Reasoning: Collected Essays by Duncan Kennedy.  Here is a description:

Collected Essays by Duncan Kennedy includes four essays written over a twenty-year span. They present a comprehensive and original account of legal reasoning as done by judges, lawyers, and legal academics. This author has been the first to put together in a systematic way the insights of American legal realism with Continental phenomenology and semiotics. His version of legal reasoning presents it as “work in a medium” deploying a set of “argument-bites” analogous to the words of a language. The result is simultaneous freedom and constraint. Kennedy then turns his approach to the critique of current European legal theory, with an essay on Hart and Kelsen and another on the approach of the European jurists pre-occupied with “coherence” and with the “European social model” in the current process of harmonization of European law. This book is likely to become a definitive introduction to critical legal theory, permitting the reader to compare and contrast it with other extant approaches.

This collection includes: Freedom and Constraint in Adjudication: A Critical Phenomenology, A Semiotics of Legal Argument A Left/Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation, Thoughts on Coherence, Social Values and National Tradition in Private Law.

Solum on the Indeterminacy Thesis

Lawrence B. Solum (University of Illinois - College of Law) has posted On the Intderminacy Crisis: Critiquing Critical Dogma (University of Chicago Law Review, Vol. 54, No. 462, 1987) on SSRN. Here is the abstract:

This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.

The strong indeterminacy thesis is the claim that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.

Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.

The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect to a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.

This was my first post-law-school publication.

McCluskey on Feminist Jurisprudence & Queer Legal Theory

Martha T. McCluskey (University at Buffalo - Law School) has posted Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations on SSRN.  Here is the abstract:

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private power is better than value-laden state regulation.

First, queer anti-statism risks joining neoliberalism in celebrating and naturalizing an imagined space of private bargaining free from state regulation. In rejecting liberal claims of state-protected rights, queer theory relies on a standard law-and-economics argument: all rights have costs. Rights to family leave, for example, may give only the illusion of state protection for workers with family responsibilities, because workers may "pay" for state-protected family leave with lower wages, fewer jobs, fewer promotions or more discrimination against women. However, a critical perspective should also recognize the converse: that all costs have rights. The private power that makes us skeptical of rights is not outside the state but produced by it.

Second, queer anti-moralism joins neoliberalism in masking the moral judgments that shape whose claims to protection against injury get privileged as "good" acts of rational self-interest maximizing by freely choosing individuals and whose injury claims get disparaged as unproductive sentimental weakness that constrain individual freedom.

Pruitt on Critical Geography & Rural Women

Lisa R. Pruitt (University of California, Davis - School of Law) has posted Of Spaces and Spheres: What Critical Geography Can Teach Law about Rural Women on SSRN. Here is the abstract:

Like other legal scholars, feminists often think about social change over time, using history as a lens to reveal disadvantage and injustice. They have demonstrated, for example, that the public/private divide and related separate spheres ideology are socially contingent developments based on evolving perceptions of women and gender roles. Shifts in such perceptions have thus informed legal changes, and vice versa.

This Article argues that a more grounded and more nuanced understanding of women's lived realities requires legal scholars to engage not only history, but also geography. Because spatial aspects of women's lives implicate inequality and moral agency, they have direct relevance to an array of legal issues. I thus deploy the tools of critical geographers - space, place, and scale - to inform law and policy-making about an overlooked population for whom spatiality can be a profoundly influential force: rural women.