Legal Theory 101
a single-semester introduction to modern American legal theory
On this page are links to readings and corresponding podcast episodes I have prepared for a course in legal theory or jurisprudence. It covers modern but (mainly) classic writings contributing to contemporary debates in America about the nature of the law and the right way to practice it.
All of the audio is linked on this page. But you will be much better off subscribing to the podcast feed in an app on your phone, whether Overcast, Pocket Casts, Castro, or the podcast app you enjoy. Just add this URL - http://www.hydratext.com/malt2016?format=rss - to your app. All of the recordings, in blog format are available here.
- The actual class includes a 100-minute discussion each week.
- Without further discussion, some of these readings may strike you as challenging or uninteresting. Understanding Hohfeld, for example, is difficult, and some find the earlier readings difficult to get through. That said, you may find later material easier going. While the material builds, it's certainly possible to skip around.
- I have linked to sources for each reading. Some are available free to anyone, some to universities, some not at all. That said, if you do a search, you'll likely find full versions of all readings.
- I did not read from a script, but I did use notes. Hopefully, this resulted in more natural-sounding episodes. But I do use phrases that make me wince when I listen back, and I don't always give as fair a representation of an idea as I'd have liked. This is the cost of speaking extemporaneously. (For example, I said "identical with" a number of times, rather than "identical to." I haven't the foggiest idea why I would say that.)
- This introduction leaves out a a lot of important modern scholarship. In particular, it suffers from a lack of racial and gender diversity among authors. The object of the course is to cover some foundational and often older ideas from which more advanced and specialized courses could then proceed. Some of these holes are covered by my students' papers, which take center stage during the last month of the course. For example, while the lack of critical race theory is a glaring omission (and I believe it deserves an entire course), I have selected, I hope, some pieces that give sufficient background in critical theory to prepare well for that next step. Student papers often take that step.
I. Introduction and Legal Realism
- Lon Fuller, The Case of the Speluncean Explorers (reading, episode)
- Oliver Wendell Holmes, Jr., The Path of the Law (reading, episode)
- Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (reading, episode)
- Roscoe Pound, Law in Books and Law in Action (reading, episode)
- Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State (reading, episode)
- Felix Cohen, Transcendental Nonsense and the Functional Approach (reading, episode)
II. Analytical Jurisprudence
- H.L.A. Hart, The Concept of Law: episodes for Chapters 1-4, Chapter 5, Chapter 6, Chapters 8 and 9
- Lon Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, and a selection from Fuller's The Morality of Law (reading, episode)
- Ronald Dworkin, Integrity in Law, Chapter 7 of Law's Empire (reading, episode)
- Scott J. Shapiro, The “Hart-Dworkin” Debate: A Short Guide for the Perplexed (reading, episode)
- Scott Hershovitz, The End of Jurisprudence (reading, episode)
- John Finnis, Law and What I Truly Should Decide (reading, episode)
III. Law and Economics
- Ronald Coase, The Problem of Social Cost
- Guido Calabresi, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral
- Richard Posner, Values and Consequences: An Introduction to Economic Analysis of Law
Note: There are no recordings for this section. For my students, I share a conversation I had with Guido Calabresi. The audio quality is poor, but I nonetheless may release this at some future date.
IV. Critical Legal Studies and Responses
- Mark Kelman, Consumption Theory, Production Theory, and Ideology in the Coase Theorem (reading, episode)
- Robert Gordon, Unfreezing Legal Reality: Critical Approaches to Law (reading, episode)
- Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma (reading, episode)
- Robert Cover, Violence and the Word (reading, episode)
- Robin West, Jurisprudence and Gender and Martha C. Nussbaum, Robin West, Jurisprudence and Gender: Defending a Radical Liberalism (West and Nussbaum, episode)
- Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction and Christian Turner, Origins of the Public/Private Theory of Legal Systems (Kennedy and Turner, episode)
Additional weeks are devoted to the development of students' papers: meeting in groups at the outline and rough draft stages and presenting final works.