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The Critique of Normativity

The Empty Circles of Liberal Justification, 96 Michigan Law Review 1 (1997). DOWNLOAD PDF.
Values, 6 Yale Journal of Law & Humanities 195 (1994). DOWNLOAD PDF.
ABSTRACT
This essay is part of the Critique of Normativity. The argument, crudely simplified, is that the cultural/linguistic grammar of “value talk” has no particular transcendent hold on thought or action despite the fact that the cultural/linguistic identity of values is to be transcendent.
Normativity and the Politics of Form, 139 University of Pennsylvania Law Review 801 (1991).
ABSTRACT
This article sets forth in full the paradigm of “normative legal thought” and shows its various noxious effects on intellectual, political and aesthetic life. A reading of this article will show that the critics’ responses (e.g., Boyle, Balkin, Radin & Michelman, etc.) that the Critique suffers from some sort of self-refuting contradiction remains undemonstrated (and quite simply wrong). The article itself attempts to show that normative legal thought is not as it represents itself to be; that its main significance lies in the rehearsal and the inscription of a false social aesthetic; that its politics are seriously out of date; that its contributions to the construction of legal thought are ambivalent at best, noxious at worst.
Stances, 139 University of Pennsylvania Law Review 1059 (1991) (Reply to Michelman and Radin).
Normative and Nowhere to Go, 43 Stanford Law Review 167 (1990). DOWNLOAD PDF.
ABSTRACT
When was the last time you were in a position to actually put the Rawlsian difference principle into effect, or to restructure the doctrinal corpus of equal protection? When was the last time you ruled on whether judges should become pragmatists, efficiency purveyors, or Hercules surrogates? Not having much success lately? That’s because normative legal thought is not a serious enterprise. Normative legal thought just goes along and proposes, recommends, prescribes, solves, and resolves. Yet despite its obvious desire to have worldly effects and 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 in a position to put any of its wonderful normative advice into effect. So, not to be rude or anything, but why do this?

Constitutional and Legal Interpretation

No Vehicles in the Park, Seattle University Law Review 381 (1999).
Day, Berry & Howard Visiting Scholar Lecture -- Authorizing Interpretation, 30 University of Connecticut Law Review 1065 (1998).
Hiding the Ball, 71 New York University Law Review 1681 (1996). DOWNLOAD PDF.

Reason

The Enchantment of Reason (Duke University Press 1998).

Legal Surrealism

My Dinner at Langdell's, 52 Buffalo Law Review 851 (2004). DOWNLOAD PDF.

Legal Aesthetics and Legal Form

The Aesthetics of American Law, 115 Harvard Law Review 1047 (2002). DOWNLOAD PDF.
ABSTRACT
Before the ethical dreams and political ambitions of law can even be articulated, let alone realized, the aesthetics of law have already shaped the medium within which those projects will have to do their work. In this article, I describe those recurrent forms that shape the creation, apprehension, and identity of law. What is at stake is an attempt to reveal the aesthetics within which American law is cast. Here, I describe four such aesthetics: In the grid aesthetic, law is pictured as a two-dimensional area divided into contiguous, well-bounded legal spaces. These spaces are divided into doctrines, rules, and the like. Those doctrines, rules, and the like are further divided into elements, and so on and so forth... The resulting structure—the grid—feels solid, sound, determinate. Law is etched in stone. The grid aesthetic is the aesthetic of bright-line rules, absolutist approaches, and categorical definitions. In the energy aesthetic, law is cast in the image of energy. Conflicting forces of principle, policy, values, and politics collide and combine in sundry ways. Precedents expand or contract in accordance with the push and pull of policy and principle. Legal rules, principles, policies, and values have magnitudes that must be quantified, measured, and compared. Movement and flux are the orders of the day. In the perspectivist aesthetic, the identities of law and laws mutate in relation to point of view. As the frame, context, perspective, or position of the actor or observer shifts, both fact and law come to have different identities. Accordingly, the social or political identity of the legal actor or observer becomes the crucial situs of law and legal inquiry. In the dissociative aesthetic, identities collapse into each other. Nothing is what it is, but is always already something else. Any attempt to refer to X is frustrated, as even the most minimal inquiry reveals that X is an unstable glomming-on of many other things that cannot be subsumed or stabilized within any one thing. The crucial contributions of the prior aesthetics—the grid (and its fixed identities), energy (and its quantifiable magnitudes), and perspective (and its identifiable relations)—have all collapsed. No determinable identities, relations, or perspectives survive.
Rights in the Postmodern Condition, chapter in Sarat & Kearns, Legal Rights: Historical and Philosophical Perspectives, (University of Michigan Press 1996).
Rules and Standards, 33 UCLA Law Review 379 (1985). DOWNLOAD PDF.
ABSTRACT
Disputes that pit a rule against a standard are extremely common in legal discourse. Indeed, the battles of legal adversaries (whether they be judges, lawyers, or legal academics) are often joined so that one side is arguing for a rule while the other is promoting a standard. The arguments we make for or against rules or standards tend to be pretty much the same regardless of the specific issue involved. The arguments are patterned and stereotyped; the substantive context in which the arguments arise hardly seems to influence their basic character. The arguments are drearily predictable, almost routine; they could easily be canned for immediate consumption in a Gilbert's of legal reasoning. The suspicion arises that much of legal discourse (including the very fanciest law-talk) might be nothing more than the unenlightening invocation of "canned" pro and con arguments about rules and standards. There are some conventional ways to escape this conclusion. The only problem is that they don’t work. Ultimately, all the more promising conventional ways of understanding the rules vs. standards dispute will turn out to be located within the bounds of that dispute. The conventional forms of legal thought allow us no place outside of the rules v. standards dichotomy from where we can make sense of the dispute. In the end, no explanation (or all explanations) of the rules vs. standards dispute is left standing. The attempt to tie form to substance is just so much form.

Deconstruction and Poststructuralism

A Brief Survey of Deconstruction, 27 Cardozo Law Review 741 (2005).
ABSTRACT
It would be a wonder if deconstruction had ever had anything of value to say about positive law—beyond cease and desist. The projects of deconstruction and positive law seemed so starkly different, so obviously askew to each other, as to preempt any significant encounter—beyond an immediate reciprocal repulsion. And yet, in the American legal academy, some attempts at negotiation did occur. While one may doubt the value of the results achieved (and I do) nonetheless some important things were learned in these negotiations about the character of positive law and the disciplining practices of the American legal academy.
“Le Hors de Texte, C’est Moi” — The Politics of Form and the Domestication of Deconstruction, 11 Cardozo Law Review 1631 (1990). DOWNLOAD PDF.
Missing Pieces: A Cognitive Approach to Law, 67 Texas Law Review 1195 (1989).
ABSTRACT
Legal thinkers operate from incommensurable cognitive frameworks, which I describe as prerationalism, rationalism, modernism, and postmodernism. Although the substantive philosophical and historical content associated with these four world views is readily recognizable (and very much in discussion these days), the cognitive frameworks that form and organize these world views are not so easily discernible—and are easily confused. Not surprisingly, we tend to shift from one cognitive framework to another rather frequently and without warning. None of us operate within just one cognitive framework. The upshot of all this is that we go along (mis)understanding each other (and ourselves) in more or less systematic ways. For a number of reasons, we tend to deny both the fact of such (mis)understandings and their systematic character. This “legal dissonance” has significant intellectual and political implications for the character, the understanding, and the practice of law.
Cannibal Moves: The Metamorphoses of the Legal Distinction, 40 Stanford Law Review 929 (1988).

Critical Legal Studies

Politics and Denial, 22 Cardozo Law Review 1135 (2001).
U.S. C.L.S., 10 Law & Critique 199 (1999).
Contradiction and Denial, a review essay of Mark Kelman’s A Guide to Critical Legal Studies, 87 Michigan Law Review 1216 (1989).

The Critique of the Subject and the Professional Self

Anti-Intellectualism, 16 Cardozo Law Review 1111 (1995).
Clerks in the Maze, 91 Michigan Law Review 2053 (1993).
ABSTRACT
If the crucial generative gesture that gives rise to the “law of the academy” lies in transforming law into an idealized image of itself— whether as “doctrine,” or “theory,” or the like, then we will have an academic discipline constituted as a continual attempt to escape from its own object. In other words, its very object of study will have been constituted as cheerful, idealized, purified simulation of the ostensible object of study. That judges should engage in such rhetorical exercises is perhaps unexceptionable. That the legal academy should unthinkingly follow suit seems rather blinkered. An opportunity missed.
Writing for Judges, 63 University of Colorado Law Review 419 (1992).
The Problem of the Subject, 69 Texas Law Review 1627 (1991). DOWNLOAD PDF.
ABSTRACT
Sometimes it seems as if there is only one story in American legal thought and only one problem. The story is the story of formalism and the problem is the problem of the subject. The story of formalism is that it never deals with the problem of the subject. The problem of the subject is that it's never been part of the story. One problem is that we are missing any convincing accounts of who or what it is that thinks or produces law. Another problem is that apparently we and our legal rhetoric have been constituted to avoid inquiry into this question of who or what produces law. In this Article, I try to reveal the various ways in which the problem of the subject arises within several important contemporary modes of legal thought including rule-of-law, critical legal studies (cls), neopragmatism, and cultural conservatism. Surprisingly, there is a recurring sameness to the ways in which the problem of the subject arises within each of these modes of contemporary legal thought. That is because, in their very rhetoric, all of these modes of contemporary legal thought establish, depend upon, and eclipse a quintessentially liberal individual subject—what I have elsewhere called the relatively autonomous self. As this subject emerges from its eclipsed condition, we will see that it emerges as a problem for each of these modes of contemporary legal thought.
Fish v. Zapp: The Case of the Relatively Autonomous Self, 76 Georgetown Law Journal 37 (1988).

Law and Economics

The Problem of Transaction Costs, 62 Southern California Law Review 1661 (1989). DOWNLOAD PDF.
ABSTRACT
In his famous article, The Problem of Social Cost, Ronald Coase attacked the Pigouvian analysis of externalities and introduced the legal world to costless pricing markets. Since the publication of that article, Coase’s insights have congealed into something known as the “Coase Theorem” and the term “transaction cost” has become one of the master concepts in the analyses and prescriptions of the Chicago “market-based” approach to law and economics. The concept of transaction costs plays such a significant role that the possibility (or impossibility) of giving the concept definite form and content becomes critical to the Chicago approach. Indeed, the claim that the market-based formulae can yield efficient legal regimes is predicated on the assumption that the concept of transaction costs is at once theoretically intelligible and operationally applicable. To be theoretically intelligible the category of transaction costs must be distinguishable, at least in theory, from other kinds of cost categories—such as, for instance, the category of production factor costs. To be operationally applicable, the term “transaction cost” must be capable of relatively non-controversial application to real economic transactions. In this Article, I try to show that these conditions do not hold: the concept of transaction costs does not have the sort of theoretical intelligibility and operational applicability necessary to make the Chicago market-based transaction cost approach plausible, appealing, or even coherent.
An Appreciative Comment on Coase’s The Problem of Social Cost: A View from the Left, [1986] Wisconsin Law Review 919.

Legal Education

The Theory and Practice of Everyday Doctrine (forthcoming 2007).
Ten Thousand Cases—Maybe More: An Essay on Centrism in Legal Education, 2 Stanford Agora (an online journal): http://agora.stanford.edu/agora/volume2/ (2003).
Jurisprudence Noire, (Symposium essay on Lawrence Joseph’s Lawyerland) 101 Columbia Law Review 1733 (2001). DOWNLOAD PDF.
ABSTRACT
Legal academics have an obligation to prepare law students for law practice. At a minimum, this would include not deluding or misleading them with highly romanticized or sanitized visions of law and lawyering. People who imagine that law is, in and of itself, a noble enterprise that elevates our moral community have a minimal obligation to warn law students that this imagined law - this law of beautiful souls - does not have much to do with contemporary American law practice. Beyond honoring such minimal disclosure requirements, one could, of course, go further and actually try to expose law students to some of the realities of law practice. But academics tend to shun the ugly sides of law—to the detriment of their students. Arguably, there is something ethically obtuse in sending law students out into lawyerland equipped with only a copy of “Heracles' Bow” or “Law's Empire,” miscellaneous ALI fragments, a few hundred statutes, ten thousand appellate cases, and a cheery graduation speech.

The Culture of Legal Thought

Law and Phrenology, 110 Harvard Law Review 877 (1997). DOWNLOAD PDF.
ABSTRACT
As the intellectual credentials of American law become increasingly dubious, the question arises: how has this discipline been intellectually organized to sustain belief among its academic practitioners? This essay explores the nineteenth-century pseudo-science of phrenology as a way of gaining insight into the intellectual organization of American law. Although there are, obviously, significant differences, the parallels are at once striking and edifying. Both phrenology and law emerged as disciplinary knowledges through attempts to cast them in the form of sciences. In both cases, the “sciences” were aesthetically organized around a fundamental ontology of reifications and animisms—“faculties” in the case of phrenology, “doctrines” and “principles” in the case of law. Both disciplines developed into extremely intricate productions of self-referential complexity. In both cases, the disciplinary edifice was maintained by disciplinary thinkers who sought confirming evidence of the truth (and value) of their enterprise and who went to great lengths to avoid disconfirming evidence. Finally, the surface plausibility of both disciplines was maintained through a tacit reliance on folk beliefs (folk-frames and folk-ontologies) that were recast in professionalized jargons. Both the similarities and the differences between phrenology and law lead to a fundamental question: does the discipline of law know anything, and if so, what?
Law as a Continuation of God by Other Means, 85 California Law Review 427 (1997). DOWNLOAD PDF.
Laying Down the Law (NYU Press 1996).
The Brilliant, the Curious and the Wrong, 39 Stanford Law Review 917 (1987).
Pre-figuration and Evaluation, 80 California Law Review 965 (1992).

Freedom of Speech

This Could Be Your Culture -- Junk Speech in the Age of Decadence (Review-Essay of Death of Discourse by Ron Collins & David Skover), 109 Harvard Law Review 1801 (1996).
How to Do Things with the First Amendment, 64 University of Colorado Law Review 1095 (1993) (Response to Stanley Fish).
The First Amendment, in Levy & Karst supplement to Encyclopedia of the American Constitution (1991).
Freedom of Speech as Therapy, a review essay of Lee Bollinger’s The Tolerant Society, 34 UCLA Law Review 265 (1986).
Review essay of Interpretations of the First Amendment, by W. Van Alstyne, 2 Constitutional Commentary 519 (1985).
An Attack on Categorical Approaches to Freedom of Speech, 30 UCLA Law Review 671 (1983).


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