American Legal Theory

This course traces the evolution of American legal theory from the Revolution to the present. It examines the thirteen 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 (2006); the rest are available online through the links below. The purchase options for The Canon include:

• Princeton University Press — paperback
• Princeton University Press — PDF
• Amazon

Week 1: Federalist Legal Theory

• Readings:
  • The Federalist (1787), #10 (Madison)
  • The Federalist (1787), #51 (Madison)
  • The Federalist (1788), #78 (Hamilton)
  • Gardner v. Village of Newburgh,  2 Johns. Ch. 162 (N.Y. 1816)

Week 2: Antebellum Legal Theory

• Readings:
  • State v. Mann, 13 N.C. 263 (1829)
  • Farwell v. Boston & Worcester R. Co., 4 Met. (45 Mass.) 49 (1842)
  • Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518 (1819)

Week 3: Classical Legal Thought

• Readings:
  • Christopher Columbus Langdell, A Summary of the Law of Contracts (1880). pp. 15-21 (The Mailbox Rule)
  • Coppage v. Kansas, 236 U.S. 1 (1915)
  • Oliver Wendell Holmes, Jr., “The Path of the Law” (1897) [Canon 29-43]

Week 4: Legal Realism

• Readings:
  • Robert Hale, “Coercion and Distribution in a Supposedly Noncoercive State” (1923) [Canon 93-110]
  • Felix Cohen, “Transcendental Nonsense and the Functional Approach” (1935) [Canon 173-204]

Week 5: Process Theory and the Law-and-Society Movement

• Readings:
  • Lon Fuller, “Consideration and Form” (1941) [Canon]
  • Marc Galanter, “Why the ‘Haves’ Come Out Ahead” (1974) [Canon]

Week 6: Economic Analysis of Law

• Reading: Ronald Coase, “The Problem of Social Cost” (1960) [Canon]

Week 7: Liberal Legal Philosophy

• Readings: Ronald Dworkin, Hard Cases (1975) [Canon]

Week 8: Republicanism

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

Week 9: Critical Legal Studies

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

Week 10: Feminist Legal Theory

• Readings: Catharine MacKinnon, “Feminism, Marxism, Method, and the State” (1982 & 1983) [Canon]

Week 11: Critical Race Theory

• Reading: Kimberle Crenshaw et al., “Critical Race Theory” (1996) [Canon]

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 final paper containing no more than 4000 words (including footnotes). The default assignment is to examine in depth one of the thirteen 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.

Guidelines for Class Discussion