Davies on Love, Understanding, & Justice, and Reading Comic Books

Ross E. Davies, George Mason University, Scalia Law School, and The Green Bag, has published Love, Understanding & Justice at Re-readings III at 1 (2018). Here is the abstract.

The great legal realist Llewellyn, then, thinks we should read and re-read a comic book because of what it can teach us about the significance of love and understanding to the administration of justice. It is a thought (a thought, that is, about love, understanding, and justice, not their exposition in comic books) that does seem to have occurred to at least a few judges and legal scholars. Or at least a few have mentioned it.

Download the article from SSRN at the link.

Priel on Law and Digestion: A Brief History of an Unpalatable Idea

Dan Priel, Osgoode Hall, has published Law and Digestion: A Brief History of an Unpalatable Idea. Here is the abstract.

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this short essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. But I also show the idea is older than the legal realists. One finds casual references to it in academic literature and newspapers from around that time, which suggest that the phrase reflected something of a received, if cynical, wisdom. Although none of the realists ever studied the question seriously, I further explain how it fit within their views on law, as well as how it might be tested today.

Download the article from SSRN at the link.

The Return To the Bramble Bush

Anders Walker, Saint Louis University School of Law, has published  Bramble Bush Revisited: Karl Llewellyn, the Great Depression, and the First Law School Crisis, 1929-1939. Here is the abstract.

This article recovers the plight of legal education during the Great Depression, showing how debates over practical training, theoretical research and the appropriate length of law school all emerged in the 1930s. Using Bramble Bush author Karl Llewellyn as a guide, it strives to make three points. One, Depression-era critics of law school called for increased attention to practical skills, like today, but also a more inter-disciplinary curriculum – something current reformers discount. Two, the push for theoretical, policy-oriented courses in the 1930s set the stage for claims that law graduates deserved more than a Bachelor of Laws degree, bolstering the move away from a two year LL.B. and towards a mandatory three year Juris Doctor, or J.D. The rise of the J.D. following World War II, this article concludes, heightened the role of inter-disciplinary work in the first three years, even as it substantially diminished the role of advanced, graduate-level research, a point worth recalling as law school reformers, the ABA and, even the President of the United States lobby for shorter, more-practice oriented programs. While such proposals may be prudent, they may also warrant a return to plural law degrees.

Download the paper from SSRN at the link. 

Categorizing Approaches To Law and Culture

Menachem Mautner, Buchmann Faculty of Law, Tel Aviv University, has published Three Approaches to Law and Culture at 96 Cornell Law Review 839 (2011). Here is the abstract.

This article discusses three major approaches connecting culture to law. The first is the historical school that arose in German jurisprudence in the first half of the nineteenth century. It views law as a product of a nation’s culture and as embedded in the daily practices of its people. The second approach is the constitutive approach that developed in American jurisprudence in the 1980s. This approach views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations. The third approach, found in twentieth-century Anglo-American jurisprudence, views the law that the courts create and apply as a distinct cultural system. Law practitioners internalize this culture in the course of their studies and professional activity, and this internalization comes to constitute, direct, and delimit the way these practitioners think, argue, resolve cases, and provide justifications. The writings of Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish are discussed. Beyond these three approaches the article points out nine additional approaches in legal scholarship concerning the relationship between law and culture. This mapping is tentative. It is hoped, however, that it gives readers a preliminary idea of the widespread use of the concept of culture in the law and that it invites further reflection on other possible ways to employ the concept of culture in legal scholarship for a richer understanding of the legal phenomenon.

The full text is not available from SSRN.