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On Philosophy in American Law

On Philosophy in American Law

Author: Francis J. Mootz III
Publisher: Cambridge University Press
ISBN: 9781107661240
Published In: February 2012
Format: Paperback , 332 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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In recent years, there has been tremendous growth of interest in the connections between law and philosophy, but the diversity of approaches that claim to be working at the intersection of these disciplines might suggest that this area of inquiry is so fractured as to be incoherent. This volume gathers leading scholars to provide focused and straightforward articulations of the role that philosophy might play at this juncture of the history of American legal thought. It marks the seventy-fifth anniversary of Karl Llewellyn's essay 'On Philosophy in American Law' in which he rehearsed the broad development of American jurisprudence, diagnosed its contemporary failings and then charted a productive path opened by the variegated scholarship that claimed to initiate a realistic approach to law and legal theory. It is written in the spirit of Llewellyn's article: they are succinct and direct arguments about the potential for bringing law and philosophy together.

• Contains succinct essays

• Offers diverse perspectives

• Writings by thirty-eight leading scholars

Introduction Francis J. Mootz III	ix
PART I. KARL LLEWELLYN AND THE COURSE OF PHILOSOPHY IN AMERICAN LAW	1
1 On Philosophy in American Law (1934) K. N. Llewellyn	3
2 Law in Life, Life in Law: Llewellyn's Legal Realism Revisited Jan M. Broekman	11
3 On Realism's Own “Hangover” of Natural Law Philosophy: Llewellyn Avec Dooyeweerd David S. Caudill	19
4 On the Instrumental View of Law in American Legal Culture Brian Z. Tamanaha	27
5 When Things Went Terribly, Terribly Wrong Steven L. Winter	35
6 The Mechanics of Perfection: Philosophy, Theology, and the Foundations of American Law Larry Catá Backer	44
PART II. PHILOSOPHICAL PERSPECTIVES ON LAW	53
7 Toward Normative Jurisprudence Robin West	55
8 Critical Legal Theory Today Jack M. Balkin	64
9 Reviving the Subject of Law Penelope Pether	73
10 Law and Creativity George H. Taylor	81
11 The Stories of American Law Robert L. Hayman Jr. and Nancy Levit	88
PART III. AREAS OF PHILOSOPHY AND THEIR RELATIONSHIP TO LAW	97
12 On Philosophy in American Law: Analytical Legal Philosophy Brian H. Bix	99
13 Political Philosophy and Prosecutorial Power Austin Sarat and Connor Clarke	106
14 On (Moral) Philosophy and American Legal Scholarship Matthew D. Adler	114
15 The Aretaic Turn in American Philosophy of Law Lawrence B. Solum	122
16 On Continental Philosophy in American Jurisprudence Adam Thurschwell	130
17 Psychoanalysis as the Jurisprudence of Freedom Jeanne L. Schroeder and David Gray Carlson	139
PART IV. PHILOSOPHICAL EXAMINATIONS OF LEGAL ISSUES	149
18 Law as Premise Frank I. Michelman	151
19 Doing Justice to Justice: Paul Ricoeur David H. Fisher	159
20 Love Is All You Need: Freedom of Thought versus Freedom of Action Eugene Garver	167
21 Legal Philosophy over the Next Century (While We Wait for the Personal Rocket Transportation We Were Promised) R. George Wright	176
22 Atmospherics: Abortion Law and Philosophy Anita L. Allen	184
PART V. LAW, RHETORIC, AND PRACTICE THEORY	193
23. Foundationalism and Ground Truth in American Legal Philosophy: Classical Rhetoric, Realism, and Pragmatism Eileen A. Scallen	195
24 The Irrelevance of Contemporary Academic Philosophy for Law: Recovering the Rhetorical Tradition Francis J. Mootz III	205
25 Dicta Peter Goodrich	215
26 Recent and Future Concepts of Law: From Conceptual Analysis to a Practice Theory of Law Dennis Patterson	223
27 The Tasks of a Philosophy of Law Robert P. Burns	232
PART VI. QUESTIONING THE RELATIONSHIP BETWEEN PHILOSOPHY AND AMERICAN LAW	239
28 Law and Philosophy at Odds Larry Alexander and Emily Sherwin	241
29 Jurisprudence: Beyond Extinction? Steven D. Smith	249
30 Law and Philosophy in the Hyperreal Pierre Schlag	257
31 Philosophy? In American Law? Philippe Nonet	265
PART VII. COMMENTARIES	271
32 Optimism and Pessimism in American Legal Philosophy Carlos A. Ball	273
33 This Jurisprudential Moment Marianne Constable	279
34 Fresh Looks, Philosophy-in-Action, and American Law Michael Sullivan	285
Contributors and Selected Bibliography	295
Name Index	305