A Critique of Adjudication [fin de Si cle]A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation. |
Contents
Introduction | 1 |
Ideological Stakes in Adjudication | 21 |
The Distinction between Adjudication and Legislation | 23 |
Ideological Conflict over the Definition of Legal Rules | 39 |
The Problem of Judicial Legislation | 71 |
The Paradox of American Critical Legalism | 73 |
Policy and Coherence | 97 |
Ideology in Adjudication | 131 |
Consequences of Adjudication | 213 |
The Moderation and Empowerment Effects | 215 |
The Legitimation Effect | 236 |
Adjudication in Social Theory | 264 |
Post Rights | 297 |
Rights in American Legal Consciousness | 299 |
The Critique of Rights | 315 |
Conclusion Landscapes along the Highway of Infinite Regress | 339 |
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Common terms and phrases
abstract adjudication American legal analysis appellate apply argue argument-bites bad faith believe chapter claim coherence commitment common law conservatism constitutional constrained activist constraint context Critical Legal Studies debate decide decision deduction denial developed doctrine Duncan Kennedy Dworkin effect example fact favor federal formal Gerald Frug H. L. A. Hart Harv idea ideological intelligentsias ideological stakes ideologized group conflict indeterminacy intelligentsia interests internal critique interpretive fidelity Jack Balkin judges judicial law judicial legislation justice Kimberle Crenshaw kind labor lawyers left/mpm leftist legal argument legal discourse legal realist legal reasoning legal rules legal theory legislature legitimation liberal and conservative logic loss of faith Marxist means norm notion outcome particular Peter Gabel plausible policy argument political position practice realist regime rhetoric rights argument role Ronald Dworkin rule choice rule of law seems sense social society sometimes strategy structure Yale L.J.