Cavanagh on Legal Thought and Empires @cambridge_cpt

Edward Cavanagh, University of Cambridge, is publishing Legal Thought and Empires: Analogies, Principles, and Authorities From the Ancients to the Moderns in Jurisprudence: An International Journal of Legal and Political Thought (2019). Here is the abstract.

Empire reveals some of the reasons why the history of legal thought should not be prepared in precisely the same way as the history of political thought. This article, beginning in the Mediterranean before adopting a more transnational scope, identifies analogy, principle, and authority as some of the principal modes of legal reasoning, and then seeks to examine several instances of their application within different imperial and colonial contexts. The British Empire is the most obvious trajectory in what follows. Like many other modern empires, however, it is optimally approached in view of longer term institutional and intellectual developments in Europe. Substantively and procedurally, European law became elaborate over time as dominant communities expanded to interact with more fixed communities. The motivations of those lawyers who elaborated this body of law were various and must be comprehended. While imperialism spurred innovation and change in the kind of objectives that were tasked to legal thinkers, what remained essential to the realisation of those objectives was their ability to enjoy recourse to those very modes of reasoning (analogies, principles, and authorities) that had characterised the development of European legal thought for millennia.

Download the article from SSRN at the link.

Allen on Doctrinal Reasoning as a Disruptive Practice

Jessie Allen, University of Pittsburgh, School of Law, is publishing Doctrinal Reasoning as a Disruptive Practice in volume 6 of the Journal of Law and Courts (2018). Here is the abstract.

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Download the article from SSRN at the link.

A New Book By Jeffrey Lipshaw: Beyond Legal Reasoning: A Critique of Pure Lawyering @Suffolk_Law @routledgebooks

Jeffrey Lipshaw, Suffolk University Law School, has published Beyond Legal Reasoning: A Critique of Pure Lawyering (Routledge, 2017). Here, from the publisher's website, is a description of the book's contents.

The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors. This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

John Forrester's Thinking In Cases (Wiley, 2016)

The late John Forrester, Professor of History and Philosophy of Science, University of Cambridge, published Thinking in Cases (Wiley, 2016). Here is a description of the book's contents from the publisher's website.

What exactly is involved in using particular case histories to think systematically about social, psychological and historical processes? Can one move from a textured particularity, like that in Freud s famous cases, to a level of reliable generality? In this book, Forrester teases out the meanings of the psychoanalytic case, how to characterize it and account for it as a particular kind of writing. In so doing, he moves from psychoanalysis to the law and medicine, to philosophy and the constituents of science. Freud and Foucault jostle here with Thomas Kuhn, Ian Hacking and Robert Stoller, and Einstein and Freud s connection emerges as a case study of two icons in the general category of the Jewish Intellectual. While Forrester was particularly concerned with analysing the style of reasoning that was dominant in psychoanalysis and related disciplines, his path-breaking account of thinking in cases will be of great interest to scholars, students and professionals across a wide range of disciplines, from history, law and the social sciences to medicine, clinical practice and the therapies of the world.