Lian's "Stereoscopic Law"

Alexander Lian has just published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press):

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

Some endorsements:

The Path of the Law has attracted and puzzled scholars for a very long time. Just what is it about?  Alexander Lian has an answer: It is about legal education broadly understood. He demonstrates this proposition by carefully situating the piece in Holmes' many publications and in the thought of others of his time and acquaintance. The result is always interesting, somehow both analytically precise and neither hurried nor dense. Read the book slowly and enjoy it. Whether in the end one agrees with Lian's conclusion, one cannot fail to come away with a better understanding of Holmes, his times and the problems of becoming educated in law. 

John Henry Schlegel, Floyd H. and Hilda L. Hurst Faculty Scholar, University at Buffalo School of Law

In this carefully researched, engagingly written, and highly original book, Alexander Lian draws on the voluminous scholarship on Holmes and the experience of a practicing attorney, who is trained in American intellectual history, to formulate a compelling theoretical foundation for legal education and legal practice rooted in Holmes's writings. 

Bruce Kimball, co-author of The Intellectual Sword: Harvard Law School, the Second Century

Alexander Lian brings a key insight to our understanding of Holmes's famed Path of the Law article: Holmes presented it as a guide to law students in their study of law rather than as a commentary on the practice of law. Building on this insight, Lian offers an original, enlightening, and comprehensive reinterpretation of Holmes. Most important, we must not forget that Holmes approached his audience as a lawyer and judge, not as a legal academic. As such, Holmes presented the law in three dimensions, not as a flat or two-dimensional series of rules, but as a deeply historical enterprise. 

Stephen M. Feldman, Jerry H. Housel/Carl F. Arnold Distinguished Professor of Law, University of Wyoming

 Alexander Lian's new book about Oliver Wendell Holmes is a magnificent achievement. A major contribution to the Holmes literature, Stereoscopic Law looks at its subject in an original, revealing way: both with a wide angle and a zoom lens. With Holmes's famous lecture "The Path of the Law" as a springboard, Lian explores and probes Holmes's thinking as a matter of legal philosophy as well as Holmes's biographical and intellectual development. Stereoscopic Law, written accessibly and provocatively, is sure to push Holmes studies in a new, fruitful direction. It should be read and pondered by anyone interested in the history of ideas and the life of the mind. 

Daniel J. Kornstein, lawyer and author of The Second Greatest American

--Dan Ernst

Giovanopoulou on Pragmatic Liberalism and US Foreign Policy

Afroditi Giovanopoulou, a doctoral candidate, Columbia University, has posted Pragmatic Legalism: Revisiting America's Order after World War II, which is forthcoming in the Harvard International Law Journal 62 (2021):

How should we think about the role of law in the making of American foreign policy? Scholarly accounts typically emphasize that the United States led the way for the establishment of a legalized international order at the end of World War II, centered around the norms of international human rights and those of the law of war. More recently, historians have argued that, in fact, a much more skeptical attitude towards international law prevailed in the postwar period. This was in large part due to the reigning influence of international relations realism in the postwar foreign policy establishment. This article argues that postwar foreign policy was defined neither by an unyielding fidelity to a norms-based international order nor enduring realist dismissal of this project. Rather, what defined the postwar period was an eclectic, variegated and situational approach to law and regulation: a mode of “pragmatic” legalism. Pragmatic legalism consciously developed as a reaction to the legal sensibilities of prewar foreign policy makers, who promoted the codification of international norms and the judicial resolution of international disputes. It also developed as a result of larger transformations in American legal thought, notably the rise of sociological jurisprudence and legal realism. Uncovering the history of pragmatic legalism produces significant consequences for how we understand the past and present of American foreign policy. It suggests that there was not a singular law-centric mode that prevailed among American foreign policy makers over the course of the twentieth century, as has been frequently assumed. The vocabulary of pragmatic legalism also shows the breadth of alternative possibilities for lawyers anxious for ways forward today. Today, a legal approach reminiscent of the tradition of international relations realism is vying to displace the previously moralizing language of American foreign policy. Neither of these two competing modes- moralizing internationalism or skeptical disengagement- is the inevitable future of American foreign policy, or American legal internationalism more broadly.

--Dan Ernst

Leeming on Lawyers' History and Entick v Carrington

Mark Leeming, Justice of the Court of Appeal of the Supreme Court of New South Wales and Challis Lecturer in Equity at the University of Sydney Law School, has posted Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police, published as (2020) 49 Australian Bar Review 199:

John Entick (wiki)

Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.

--Dan Ernst

Helmholz's "Natural Law in Court" at NBN

Over at New Books Network, Jeffrey Bristol talks to R. H. Helmholz, University of Chicago Law School, about Natural Law in Court: A History of Legal Theory in Practice:

R. H. Helmholz's book Natural Law in Court (Harvard UP, 2015) serves as a guide to the uses of natural law in the past. It shows how lawyers, judges and jurists used natural law to reason and argue about all areas of the law, be they procedural or substantive. Far from being a polemic, this book delves into the legal record of multiple countries to compare, contrast and shed light on the role natural law played in actual legal disputes. Due to the renewed interest in natural law today, this book serves as an important counter-point to legal thinkers who too often rely on purely philosophical or theoretical notions of natural law in their arguments to show how natural law was (and potential can be) deployed to make effective legal arguments in actual legal proceedings.

--Dan Ernst

Magness on Coining "Neoliberalism" in Weimar Germany

Phillip Magness, American Institute for Economic Research, has posted Coining Neoliberalism: Interwar Germany and the Neglected Origins of a Pejorative Moniker:

Widespread academic use of the term "neoliberalism" is of surprisingly recent origin, dating to only the late 20th century. The vast and growing literature on this subject has nonetheless settled on an earlier origin story that depicts the term as self-selected moniker from the Walter Lippmann Colloquium, a 1938 Paris gathering of free-market academics that foreshadowed the post-war founding of the Mont Pelerin Society.

This origin story, however, is a myth that likely derives from a misreading of French philosopher Michel Foucault, who first directed modern scholarly attention to the Paris gathering. By turning to neglected German-language sources, this study shows that the term and modern concept of "neoliberalism" predate the 1938 conference. Rather, "neo/neu-liberalismus" was first popularized by a succession of Marxist and Fascist political theorists in the early 1920s, who employed it as a term of disparagement against the "Marginal Utility School" of economic thought anchored at the University of Vienna. These critics of marginalism diverged sharply on the political far-left and far-right of interwar Austrian and German politics, but shared a common disdain for the theory of subjective value promoted by the Viennese circle around economist Ludwig von Mises.

This earlier origin story of the term links it conceptually to modern-day uses, which often display a similar pejorative character to its interwar uses on the political left. It further helps to explain why several attendees of the 1938 conference, Mises among them, rejected the proposed term.

--Dan Ernst

Green on Erie's Fall and Rise

Craig Green, Temple Law, has posted Erie and Constitutional Structure: An Intellectual History, which appeared in the Akron Law Review 52 (2019):

This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers.

The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.

--Dan Ernst

Barzun on MacKinnon

Charles L. Barzun, University of Virginia School of Law, has posted Catharine MacKinnon and the Common Law:

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

--Dan Ernst

Geiringer on Representation-Reenforcement and the NZ Bill of Rights

Claudia Geiringer, Victoria University of Wellington School of Law, has posted When Constitutional Theories Migrate: A Case Study, which is forthcoming in the American Journal of Comparative Law:

The last decade or so has witnessed a burgeoning of literature on the role of cross-jurisdictional influences in the design (as well as subsequent interpretation) of national constitutions. The consensus emerging from that literature is that transnational borrowing in the course of constitutional making is both inevitable and impossible. In a globalized world, those involved in the design of a new constitution naturally look beyond their borders for inspiration. Borrowing is thus endemic. But borrowing, in any true sense, is also impossible because in the process of migration, constitutional ideas must be de- and then re-contextualized in order to fit them for the new legal system.

What, though, if the object of transnational influence is not a constitutional text or an institutional mechanism but, rather, a scholarly theory? That is the question addressed by this article. Specifically, the article examines the intriguing (and little known) story of how John Hart Ely’s representation-reinforcing theory of (American) constitutional interpretation was transformed into a blueprint for the design of the New Zealand Bill of Rights Act. It suggests that Ely’s journey to the South Pacific has the potential to illuminate both the study of constitutional migration generally and, more specifically, the linkages between comparative law and constitutional theory.

–Dan Ernst.  H/t: Legal Theory Blog