U.S. Legal Theory: a Critical Introduction
Normative legal theorists often ask: how should a society structure its laws? But, perhaps a more pertinent question—particularly in a society founded, as the U.S. was, on and through domination and exploitation—is: how does a society structure its laws? Since the 20th century, certain strands of U.S. legal theory have taken a decidedly critical turn, seeking to understand questions of law and interpretation in the context of actually existing U.S. society—liberal, capitalist, segregationist, and imperialist. What, in the U.S., is the nature of the law? What do our laws reflect? How are they interpreted? What does it mean to call a judicial decision “correct”? And, what can a study of contemporary legal theory—from Legal Realism to Critical Legal Studies to Critical Race Theory—teach us about the development and practice of public and private law in the context of U.S. economic, political, and social history?
In this course, we will explore the historical emergence, development, and main ideas and currents of legal theory in the United States. We will begin by examining how early American legislators and courts adapted English common law to the exigencies of continental conquest. We will trace how debates about law and morality cohere around common themes across centuries, from Legal Formalism to Legal Realism to Law and Economics to Critical Race Theory. Readings will be drawn from works by Robert Hale, Judith Shklar, H.L.A. Hart, Duncan Kennedy, Roberto Unger, Ronald Dworkin, John Rawls, Robert Cover, Cheryl Harris, Kimberlé Crenshaw, Charles Mills, Derrick Bell, and K-Sue Park, among others. As we go, we will ask: What threads of continuity link older theories of law to more recent critical approaches? How can we understand the historical arc of legal theory’s development in the U.S.? And, how can a critical legal theory enable us to address the pressing problems of the present?
Course ScheduleWednesday, 6:30-9:30pm EST
February 02 — February 23, 2022