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May 13, 2019|Henry Friendly, legal realism, Oliver Wendell Holmes, Richard Posner

Swan Song of a Great Colossus: The Latest from Richard Posner

by Stephen Presser|

Judge Richard Posner
Legal realists will find much here to admire, but those who hope the law can be something more than applied pragmatism, not so much.

June 6, 2016|Chief Justice John Marshall, Divergent Paths, legal formalism, legal realism, Richard Posner, Sturges v. Crowninshield

Strengthening the Rule of Law Requires More, Not Less, Reliance on Formalism

by John O. McGinnis|

Richard A. Posner is the greatest law professor ever to have become a judge in the United States. And he has proven to be the most influential appellate jurist below the Supreme Court who was ever a law professor. Indeed, by the most telling measure—citations by other courts—he holds more sway over his colleagues than any other jurist on the federal courts of appeals. Thus, it would seem that no one is better equipped to write about the relation between the academy and  the judiciary. Sadly, however, in Divergent Paths: The Academy and the Judiciary he has produced a disappointing…

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February 14, 2016|Antonin Scalia, jurisprudence, legal realism, Originalism, textualism, Thomas Carlyle

Antonin Scalia–A Giant of Jurisprudence

by John O. McGinnis|

Justice Antonin Scalia

Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.

More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body.  Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.

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February 5, 2014|Cosmic Restraint, Heller, judicial activism, Justice Scalia, Law and Economics, legal realism, Originalism, Reflections on Judging, Richard Posner, Robert Bork

Posner’s Tyranny of Expertise

by Greg Weiner|

Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.

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September 3, 2013|Common Law, Henry Maine, Historicism, Legal History, legal realism, Originalism, Roscoe Pound, Sociological Jurisprudence, Thomas Cooley

The Legal Historian as Entomologist

by John O. McGinnis|

The law school curriculum is now full of interdisciplinary subjects. Law and economics may dominate but almost other every social science is well represented. These perspectives offer innovative methods to analyze the effects of law and inform the content of legal reforms. But long before the rise of this alphabet soup of interdisciplinarity, law and history were a well-established combination, providing an important part of legal education and an essential element of legal science. The early salience of legal history for the study of law is all the more reason to welcome the splendid volume, Law’s History: American Legal Thought and…

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March 1, 2012|legal formalism, legal realism

Tom Smith on Legal Realism and Formalism

by Mike Rappaport|

Tom has a characteristically funny and insightful post on legal realism and formalism.  Here is an excerpt: Of course every legal system, if it is a legal system, is to a degree mechanical and if it's not just a mathematical exercise, to a degree not.  A twenty year old pickup, that wiggles and squeaks a great deal, is still a mechanical system.  That it does a great deal it can do in part because a lot of it is not rigid, hardly makes it less mechanical.  Part of how it works may not be explicable in terms of standard mechanics.  You…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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