Home >
Law >
Administrative / Constitutional Law >
Reconstructing American Legal Realism & Rethinking Private Law Theory

Reconstructing American Legal Realism & Rethinking Private Law Theory

Author: Hanoch Dagan
Publisher: Oxford University Press USA
ISBN: 9780199890699
Published In: October 2013
Format: Hardback , 320 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

Out of stock

Description
Contents
Author

Details

Demonstrates how legal realism developed a rich account of law by drawing upon the texts of Holmes, Cardozo, and Llewellyn
Explains why those who claim to be modern legal realists have deviated from its legacy
Expands the application of legal realism and reasoning to a contemporary understanding of legal theory
Analyzes a range of core jurisprudential questions regarding the rule of law and the nature and structure of private law
Revives our understanding of law as a growing institution balancing three tensions: power and reason, science and craft, and tradition and progress

In the myriad choices of interpretation judges face when confronted with rules and cases, legal realists are concerned with how these doctrinal materials carry over into judicial outcomes. What can explain past judicial behavior and predict its future course? How can law constrain judgments made by unelected judges? How can the distinction between law and politics be maintained despite the collapse of law's autonomy in its positivist rendition?

In Reconstructing American Legal Realism & Rethinking Private Law Theory, Hanoch Dagan provides an innovative and useful interpretation of legal realism. He revives the legal realists' rich account of law as a growing institution accommodating three sets of constitutive tensions-power and reason, science and craft, and tradition and progress-and demonstrates how the major claims attributed to legal realism fit into this conception of law.

Dagan seeks to rein in realist descendants who have become fixated on one aspect of the big picture, and to dispel the misconceptions that those gone astray represent the tradition accurately or that realism is now merely a historical signpost. He draws upon the realist texts of Oliver Wendell Holmes, Karl Llewellyn, and others to explain how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

Building on this realist conception of law and enriching its texture, Dagan addresses more particular jurisprudential questions. He shows that the realist achievement in capturing law's irreducible complexity is crucial to the reinvigoration of legal theory as a distinct scholarly subject matter, and is also inspiring for a host of other, more specific theoretical topics, such as the rule of law, the autonomy and taxonomy of private law, the relationships between rights and remedies, and the pluralism and perfectionism that typify private law.

Readership: legal theorists, law professors, students, law and jurisprudence scholars

Chapter 1: Introduction
Chapter 2: The Realist Conception
Chapter 3: Rationality and Benevolence
Chapter 4: Character of Legal Theory
Chapter 5: Autonomy of Private Law
Chapter 6: Taxonomy of Private Law
Chapter 7: Remedies and Rights
Chapter 8: Pluralism and Perfectionism
Chapter 9: Pluralism and the Rule of Law

Hanoch Dagan is a former Dean of the Tel Aviv University Faculty of Law and the founding director of the Zvi Meitar Center for Advanced Legal Studies. Professor Dagan is a senior fellow at the Israel Democracy Institute, a member of the American Law Institute, and of the International Academy of Comparative Law. Professor Dagan received an LL.M. and a J.S.D. from Yale Law School, where he held a Fulbright award after receiving his LL.B.summa cum laude from Tel Aviv University. Prior to becoming Dean at Tel Aviv University, he was the director of the Cegla Center for Interdisciplinary Research of the Law and the editor in chief of Theoretical Inquiries in Law. Professor Dagan has also written over fifty articles in the leading American law journals and reviews as well as five books, among them Property: Values and Institutions (Oxford University Press 2011), and Properties of Property (with Gregory S. Alexander 2012).