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In legal scholarship, what defines staying power?
What does it mean to “think like a lawyer”—in particular, an American lawyer? After wrestling with that question for years, Harvard Law Professors David Kennedy ’80 and William W. Fisher III ’82 have given us an anthology of the articles they believe yield the answer. “The Canon of American Legal Thought” (Princeton University Press, 2006) brings together the 20 articles they deem to have been most influential in shaping American legal thinking and a distinctly American style of reasoning across the 20th century.
Harvard Law School is well-represented throughout the collection: A third of the articles first appeared in the Harvard Law Review. Authors include HLS professors and alumni ranging from Supreme Court Justice Oliver Wendell Holmes Jr. LL.B. 1866 and former HLS Dean Albert Sacks ’48 to current Professors Duncan Kennedy and Frank Michelman ’60.
Each article is introduced by an essay from Fisher or Kennedy situating “the work in the author’s trajectory and in the intellectual climate of the era,” says Fisher. The editors divide the canon of American legal thought into eight schools, including Legal Realism, The Legal Process, Modern Liberalism, Law and Economics, and Feminist Legal Theory. While those labels are familiar to many students and practicing attorneys, Kennedy says the ideas behind them are too often reduced to mere shorthand. “Indeed, we were both struck by the intellectual sophistication with which so many of the clichés of everyday legal argument were originally formulated,” he adds.
The editors say the collection shows a rhythm that has been repeated for more than a century: A single idea or “orthodoxy” dominates for a while, then a “critique” follows, and finally there is fragmentation, when consensus breaks down. For example, the formal rules of classical legal thought were criticized in the early 20th century by functionalist, pragmatic and “legal realist” modes of reasoning.
After World War II, a new consensus emerged which focused on the legal process and the legitimacy of institutional arrangements. Starting in the 1960s, Fisher and Kennedy explain, the Legal Process “consensus was in turn itself shattered by the emergence of an array of methodologies associated variously with economics, sociology, liberal theory and the work of critical legal studies scholars.”
They call the years since 1960 “the emergence of eclecticism,” in which no single idea dominates. “Whether in some future moment legal consciousness will be consolidated as in the late 19th century or postwar period, it’s very hard to know.”
The collection began to take shape 15 years ago when Kennedy first offered a course at HLS on American legal thought to introduce LL.M. students—as well as second- and third-year J.D. candidates—to the ideas behind the first-year curriculum. Fisher became involved when the two professors compiled a “canonical list” for a summer workshop series for new law teachers. As Kennedy and Fisher consulted widely, the list evolved. The articles that made the final cut are those that garnered the most consensus, that have been taught most successfully and that seem to stand most clearly for methodological innovation.
They hope the collection will be useful to many audiences. “The most obvious one,” says Fisher, “is law students hungry for immersion in the theoretical materials of which they ordinarily get snippets in their classes. Those tend to be unsatisfying because they are not connected to full-blown arguments.”
Kennedy says the book should also prove helpful to law professors “who are presumed to know these texts but may never have read them whole or with bibliographical notes.” Finally, he adds, he hopes there’s a broader audience among lawyers: “The volume can take them back to the best days of law school” and give them occasion “to reflect on whether what they learned still makes sense.”
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