Books on jurisprudence and on critical legal studies
In one of yesterday’s posts I wrote that jurisprudence was my favorite subject way back in law school. A commenter named “William Nelson” asked me if I could recommend a book on the subject.
I confess that the last time I read a book on jurisprudence it was while I was in law school. So the book I’m recommending is quite old, to say the least. But I see that it’s still considered a classic. The book is Lon Fuller’s The Morality of Law.
While I’m at it, I’m going to highly recommend another book, one I read many years after leaving law school – but still, many years ago. It’s a work from the 1990s that describes the alarming rise of Critical Legal Studies and the ways in which it has affected legal training and the practice of law in general. It’s called Beyond All Reason: The Radical Assault on Truth In American Law. It’s incredible to read it and realize that all of this was already quite clear in 1997, when the book first came out. By the way, it was written by two apparently liberal law professors (Daniel A. Farber and Suzanna Sherry) rather than by anyone on the right.
if memory serves, didn’t derek bok, a progressive in good standing, try at least to clip derrick bell’s wings as it were,
there has been little exploration of what bell signified until some work that jamie weinstein did at the daily caller some investigation that d’souza did, and most recently rufo’s deep dive, but obama was an evangelist for bell, in his syllabi, and assume there were less known figure, this message was carried to the justice department civil rights divisions, as von spakovsky and christian adams noted and other less conspicuous places,
Speaking of legal matters, Judge Merchan has notified both sides in the Trump case of a potential juror issue. Apparently the day before the verdict was announced, someone posted online that he had a cousin in the jury, and Trump was about to be convicted.
There might not be anything of interest here. Or there might be evidence of juror impropriety. It looks like Judge Merchan is going to investigate, as is appropriate.
Well it happened more than a week ago
https://x.com/bennyjohnson/status/1799178304282378471
How did this rank knavery get its way into the entrails of the legsl system slowlynsnd all at once
https://x.com/BehizyTweets/status/1799178561825522128?t=FIz_ke3FdFOXtG2Sf2firw&s=19
Says Behizy: “New York law requires the verdict nullified and NEW TRIAL held”
Who knows? I don’t.
Merchan is a bigoted fool and should NOT be a judge in any capacity, never mind being the judge in Trump’s trial. He donated $2K to the Democratic Party in 2020 if I understand right, and his daughter is a major Dem. money raiser. Rplacing a juror? BFD. More of the same.
sdferr –
It depends. If it’s a random troll, then it means nothing. If it’s not, then yeah, there might be a mistrial.
You mean of all the scandals associated with the trial, what might upend the verdict is that one of the tool jurors tipped off one of his cousins the day before? We live in clown world.
The end stage Weimar republicans don’t seem to understand the wolves will eat them, too
Well the whole thing was worse than clown world with all the real cries for justice from victims
Cicero:
The judge donated $35 to Democrats. Nothing like $2K, yet nevertheless wrong to do. Here’s the story:
So it’s a rule that has little to no meaning – at least, when Democrats do it.
the donation “would be viewed as trivial, especially given the small sums.”
Some people might say that the labeling of accounting entries in a non-public company’s ledger is also trivial.
Oh giller has been a hack for 30 years now since hillarys rose law firm records
With the atty. Generals office (his wife
) same with matt graves jack smith and of course fani willis
Thank you for the recommendations for a book. I missed the plural but you took care of that too. Any other book suggestions would be appreciated. (Thread got hijacked).
I love your blog. I have been reading it for years (before FredHjr passed away???)
Thanks for filling my intellectual tank repeatedly! When I want calm rational thought I come here…
Will Nelson
If the e-mail by the juror’s cousin proves out and a mistrial is declared, I will consider it a fulfillment of this quote:
“God has a special providence for fools, drunkards, and the United States of America.”
Otto von Bismarck
Now the Left is claiming the Facebook post is a fake plant.
Anyone could have written that FB note, if they applied the secular meaning of the word “cousin.” Didn’t we all know what the verdict would be before the trial even began? Good luck with that mistrial idea.
Jerry,
You’re right.
FYI, the Kindle version of Morality of Law is a scanned image of an original hard copy of the book. It comes through as rotated 90° and some images are cut off. The font size is not adjustable and being a scan, is difficult to read comfortably. It’s a shame; I was looking forward to reading it. Might have a go at the second recommendation.
Thanks for the recommendations Neo!
Plan A hasn’t worked so well, mistrial is plan B or C or Q or something.
Re book recommendations for William Nelson and this thread’s original topic.
My first recommendation comes from the libertarian con law Prof who nearly successfully overturned the Obama Care law, Randy Barnett. At Georgetown University School of law, he pursues the novel question: under the US Constitution, could the State enforce an individual requirement for health insurance or not? The short answer was provided by Chief Justice Roberts in the majority opinion of SCOTUS: Yes, if it is a tax like other taxes. Therefore Roberts — against the entirety of legislative debate that never mentions the word “tax” or “taxation” — concluded it was a tax to save Obamacare and President Zero’s claim to fame. Or infamy or whatever.
My recommendation is not about that case or Obamacare. Rather, it is about the jurisprudential framing of Constitutional law. And therefore I give this book to university students considering law school.
Randy Barnett’s title is “The Presumption of Liberty” which was re-released in a 2013 edition beginning with “Restoring The Lost Constitution.”
I would be surprised if constitutional lawyer Robert Barnes does not also recommend it.
Here’s the volume’s description from Princeton University Press:
“The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation’s founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.
“Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a ‘presumption of liberty’ to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty…..”
Now, there is some normative tension here that isn’t manifest in, say, the late Justice Antonin Scalia’s reading of law as turning on the original public meaning of terms — better known simply as originalism.
The tension is the argument that Constitutional law ought to be biased in favor of an expansive view of liberty. And therefore Barnett I believe would endorse homosexual marriage, while Scalia — mindful of protecting communitarian norms — would not. Likewise, the Obergerfel (sp?) ruling implies the legalization of adult incestual marriage and drugs (just as Scalia feared in a famous footnote to a 2003 decision).
In short, this is a fun argument for lovers of liberty to follow Barnett’s thinking through. And filled with contemporary issue relevance.
Please check back here before Neo’s Monday posts because I may have a couple more suggestions. Like our hostess, it’s been awhile — and worse, some admired and beloved books of mine have disappeared from my shelves.
The adherents of the Critical school of Marxist philosophy, or Crits as they were then commonly know, mounted their first assault on the law schools in the 1980s and were beaten back. The older law professors just couldn’t accept that people who deny the primary role of reason and evidence in the law, people who deny the existence of law altogether and who believe all that disputes boil down to is power and oppression, should be teaching law. Well, the older professors died off, and then all of a sudden, the Crits were back and running the show in a lot of places. It will require a concerted effort to diminish their influence let alone drive them out of the law schools.
@Douglas Levene: “It will require a concerted effort to diminish their influence let alone drive them out of the law schools.”
This triggered the thought that perhaps we should just close the law schools down for about 5 years. That thought was followed by one suggesting people should not be allowed to study law until that have had some adult experience with real life, a job or running a business, possibly some family obligations, etc. The law is too serious to be entrusted to a 29 year old Bidenite clone, even if for other folks we do allow them to begin law school at age 25 or 26 [i.e., the age at which you can rent a car on your recognizance]. Also the age at which your brain is (nominally) fully grown.
[I would also prefer to see federal political office holders not elected until at least age 35 for Congress, 50 for the judiciary, and 55 for the presidency = con amendment. Maybe also max age of 80?]
Conversely, for med school, perhaps we can find a way to introduce 2 or 3 levels of education in conjunction with medical experience. The goal would be to provide more and various levels of medical support sooner in a doctor’s career, and maybe pay them enough for that level of skill that they can leave med school not in such deep hock. We have PA’s, PCP’s, and specialists now, but maybe a level between PA and PCP with an inclination towards a given specialty. Also need to factor in how AI might assist human practitioners at earlier stages in their careers.