American Legal Theory

This course traces the evolution of American legal theory from the Revolution to the present. It examines the twelve approaches that have been most influential, sets each approach into historical context, explores its impact on legal doctrine, and considers its strengths and weaknesses.

All of the required readings consist of primary sources. Most are available in Kennedy & Fisher, The Canon of American Legal Thought (Princeton University Press 2006); the rest are available online through the links below.

Week 1: Federalist Legal Theory

• Readings:
  • The Federalist (1787), #10 (Madison)
  • The Federalist (1781), #51 (Madison)
  • The Federalist (1788), #78 (Hamilton)
  • The Federalist (1788), #80 (Hamilton)

Week 2: The Grand Style

• Readings:
  • Stark v. Parker, 19 Mass. 267 (1824)
  • Britton v. Turner, 6 N.H. 481 (1834)
  • State v. Mann, 13 N.C. 269 (1829)

Week 3: Classical Legal Thought

• Readings:
  • Christopher Columbus Langdell, A Summary of the Law of Contracts (1880). pp. 15-21
  • Coppage v. Kansas, 236 U.S. 1 (1915)
  • Oliver Wendell Holmes, Jr., “The Path of the Law” (1897)

Week 4: Legal Realism

• Readings:
  • Robert Hale, “Coercion and Distribution in a Supposedly Noncoercive State” (1923)
  • Felix Cohen, “Transcendental Nonsense and the Functional Approach” (1935)

Week 5: Process Theory

• Reading: Lon Fuller, “Consideration and Form” (1941)
• Herbert Wechsler, “Toward Neutral Principles of Constitutional Law” (1959)

Week 6: Economic Analysis of Law

• Reading:
  • Ronald Coase, “The Problem of Social Cost” (1960)
  • Louis Kaplow & Steven Shavell, “Principles of Fairness Versus Human Welfare: On the Evaluation of Legal Policy” (2000), pp. 11-59

Week 7: The Law and Society Movement

• Reading:
  • Stewart Macaulay, “Non-Contractual Relations in Business” (1963)
  • Marc Galanter, “Why the ‘Haves’ Come Out Ahead” (1974)

Week 8: Liberal Legal Philosophy

• Reading:
  • Ronald Dworkin, Hard Cases (1975)
  • Charles Fried, Right and Wrong (1978), pp. ____

Week 9: Republicanism

• Reading: Frank Michelman, “Law’s Republic” (1988)

Week 10: Critical Legal Studies

• Reading: Duncan Kennedy, “Form and Substance in Private Law Adjudication” (1976)

Week 11: Feminist and Critical Race Theory

• Reading:
  • Catharine MacKinnon, “Feminism, Marxism, Method, and the State” (1982 & 1983)
  • Kimberle Crenshaw et al., “Critical Race Theory” (1996)

Week 12: Law and Political Economy

• Readings:
  • Jedediah Britton-Purdy et al., “Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis” (2020)
  • Yochai Benkler, “The Ends of Law” (2023)

Final Paper

There is no examination in this course. Instead, each student must submit, by the end of the exam period, a 15-page final paper. The default assignment is to examine in depth one of the twelve theories — for example, by criticizing it, defending it against criticisms, proposing a modification of it, or exploring its impact on an aspect of law, government, or economic activity other than the aspects considered in class.