Legal Scholarship Research Paper

1. Jurisprudence And Doctrinal Studies Between 1900 And 1970

1.1 The Attack On Formalism

In the early years of the twentieth century, doctrinal studies in both the continental and Anglo-American worlds were dominated by an approach that can be described as legal formalism, or conceptualism. Its essential premise was that the law is an autonomous system, based on general principles, that is accessible to reason and that enables judges to reach uniform and definitive decisions in contested cases (Schauer 1988). Formalism did not necessarily advance the natural law idea that this system represented transcendental truth, but it did claim that law was animated by general principles of justice that transcended particular political or policy positions. In continental Europe, the source of this autonomous system was regarded as each nation’s legal code; in Great Britain and the United States, it was the common law. By virtue of the claim that law is autonomous, and the rather close focus on judicial decisions, both versions of formalism were somewhat insulated from major jurisprudential movements such as Marxism and sociological jurisprudence.

The attack on formalism came from two sources. The first, generally described as legal realism, asserted that judicial decisions and legal concepts are indeterminate or contextual, that they are the product of social attitudes, rather than reasoned analysis, and that they are subordinated to the political process, rather than transcending it. American legal realism emphasized the indeterminacy of judicial decisions and their dependence upon the particular views of the judge. Continental realism, which was centered in Scandinavia, emphasized the contextual nature of legal concepts and their dependence upon more general social attitudes. The second source of the attack was sociological jurisprudence, which often did not attack formalism per se, but rather attempted to develop an alternative conception of law as determined by, and contributing to, more general social forces (Ehrlich 1975). This was connected with the work of anthropologists and sociologists who treated law as an aspect of social systems, particularly those without formal legal institutions. A number of leading American realists saw the sociological approach as an alternative to doctrine, and a few tried to study legal behavior as a sociological phenomenon (see Schlegel 1995).

Apart from this sociological approach, the dominant theme in early twentieth-century jurisprudence was legal positivism. According to Kelsen, law is simply the set of threats promulgated by public officials whose authority is established by a single, agreed upon principle, or Grundnorm (Kelsen 1967) As such, it is completely separate from morality; a particular normative statement is a law if, and only if, it has been duly promulgated by a recognized public official, or by a private party who has been delegated to act by such a recognized official. Legal positivism was motivated partially by larger philosophic trends (such as logical positivism) and partially by the effort to refute natural law jurisprudence. While its connection with doctrinal studies is not immediately self-evident, it seems consistent with American realists’ rejection of general common law, that is, the idea that legal rules can be derived from general principles and need not correspond to the decisional law of any specific jurisdiction, and with the Scandinavian realists’ insistence that there are no overarching legal concepts, but only concepts specific to particular societies.

1.2 The Rehabilitation Of Law

The years following World War II saw renewed interest in the concept of law in both jurisprudence and doctrinal studies. In jurisprudence, scholars began searching for a way to re-infuse some sense of social morality into the term law, so that one would not be required to apply that term to the rules promulgated by a generally immoral regime such as Nazi Germany. This led to a revival of natural law (Finnis 1980), but the appeal of this work was limited by its continuing religious overtones. More influential was Fuller’s effort to articulate a purely procedural version of natural law (Fuller 1964), which asserted that any declarations that we would be willing to regard as law must have certain universal characteristics such as generality, constancy, and nonretro Activity. Still more influential was Hart’s recharacterization of legal positivism in light of Wittgenstein’s linguistic theory (Hart 1961). Law, in Hart’s view, is a complex set of social rules that not only states the sanctions that public officials will impose, but also the manner in which: (a) they impose these sanctions; (b) new sanctions are developed; (c) private parties are empowered to take actions that will be enforced by public authorities; and (d) the authorities who carry out these various functions are identified.

Doctrinal scholarship rejected legal realism more definitively than jurisprudence rejected legal positivism. In the United States, the legal process school conceded that the legal system was subordinate to politics, thus acknowledging positivism’s essential claim, but insisted that the concept of law retained an important role within this more limited sphere of action. Fuller argued that reasoned decision making according to rules established in advance is the best way to adjudicate disputes between parties, although a poor way to formulate new social policy (Fuller 1978). Other members of this school explored the rationales by which the courts could use the US Constitution to evaluate, and, if necessary, strike down legislation, without substituting its political judgment for that of the legislature (Bickel 1962, Wechsler 1959). Central to this inquiry was the belief that doctrine possessed an inherent logic or coherence, so that judges could reach generally accepted conclusions by means of reasoned argument. Implicit in this belief was that public officials, particularly judges, generally acted in the public interest, and that their decisions harmed social welfare only when they strayed beyond the limits of their institutional competence.

In Europe, theories of judicial decision making focused on statutory interpretation, which generally (although not in Britain) meant the interpretation of a comprehensive civil or criminal code. Many scholars asserted, or assumed, that judges could reach generally accepted conclusions by means of reasoned argument if they followed and extrapolated the inherent logic of the code (MacCormick and Summers 1991). As in the case of the American legal process school, this work was premised on the idea that doctrine was coherent within a politically defined area of proper operation. Because it concerned interpretation of a legal code, rather than common law or a vaguely worded constitution, it was more closely allied to legal positivism than its American equivalent. Both the American and European versions of this postwar approach were sufficiently focused upon law’s internal rules to minimize the influence of social science studies of law.

2. The Critique Of Law, 1970 To 1985

2.1 Law And Economics

The attack on this rehabilitated concept of law was initiated primarily in the United States, and came from two sources that were associated with opposite ends of the American political spectrum. The first was the Law and Economics Movement, which was derived from the Chicago School of microeconomics and shared its basic premise that all social action is a rational effort to maximize the actor’s material self-interest. According to this analysis, legislators are motivated solely by their desire to be re-elected (assuming that effective sanctions exist against out-right bribery); thus, the laws they produce have no inherent logic, and no necessary relation to the public interest. While these laws might correspond to the preferences of voting citizens, they are more likely to reflect the distorting influence of special interest groups that can organize and fundraise more effectively than the general public (Olson 1965). A judge who is interpreting such laws cannot be guided by their internal logic; all she can do is enforce the bargain that the interest groups reached, or interpret the law narrowly in deference to public values (Easterbrook 1983, Macey 1986). Posner originally asserted that the common law, as opposed to statutory law, represented a coherent body of doctrine that implemented the social policy of efficiency (Posner 1972). Other law and economics writers soon abandoned this implausible contention and devoted their efforts to analyzing the self-interested motivations that lead private parties to engage in or to avoid litigation, and that lead lawyers to encourage or discourage them from doing so, to settle cases, or to adopt specific trial strategies (Priest and Klein 1984). This work suggests that common law, like statutory law, lacks any conceptual coherence, and is merely the product of economic forces.

In addition to its analysis of doctrine, the Law and Economics Movement advances the jurisprudential position that the only proper purpose of law, or of government in general, is to achieve economic efficiency, that is, to maximize the nation’s wealth (Posner 1972). When combined with the economic analysis of law, this leads to the conclusion that regulatory law is generally undesirable, and that the social control of economic relations should be left to the market. The argument seems more political than legal, in that it addresses the purpose of law rather than its nature, and it is clearly related to the conservative politics of most of the early law and economics scholars. But it also represents a theory of law, in that it advances a general rule that identifies improper laws and improper roles for legal actors.

2.2 Critical Legal Studies

The Critical Legal Studies Movement was derived, albeit rather loosely, from the critical theory of the Frankfurt School. It revives the realist claim that law, both statutory and decisional, is not an internally coherent system but a collection of unrelated rules. Unlike legal realism, however, critical legal studies asserts that the reason for this lack of coherence is that law is a device by which the political elite maintains its hegemony, or social control (Horwitz 1977, Unger 1975). It is a particularly effective device, moreover, because the widely-accepted claim that law is coherent or logical masks its class-oriented character; in effect, it creates a false consciousness among the disadvantaged that leads them to accept their subordinated status. By means of doctrinal analysis, critical legal studies scholars seek to disprove the claim that legal decisions are logical or coherent, and thereby to reveal the hegemonic purposes of these decisions. In undertaking this analysis, they went beyond the legal realists’ demonstration of the internal inconsistencies of doctrine, invoking various aspects of continental thought such as deconstruction and postmodernism to demonstrate that any claim to linguistic coherence is essentially fraudulent. This analysis of doctrine is linked to the jurisprudential position that the social dominance of the elite, and its use of law to secure its position, is profoundly immoral. A just society achieves equality among its members—if not complete equality, then certainly a much higher degree of equality than contemporary society displays. Thus, modern society needs to be emancipated from its existing social structures and from ideologies, including law, that maintain those structures and preach the legitimacy of those structures to the disadvantaged. Again, this is essentially a political argument, with an obvious connection to the progressive or radical politics of critical legal studies scholars. But again, it constitutes a general theory of law by distinguishing between the improper, hegemonic purposes of law and its proper, emancipatory purposes.

Despite their obvious differences in political orientation, law and economics and critical legal studies rest on closely related insights, and exercise similar impacts on the character of legal scholarship. Both movements renew the realist attack on law’s doctrinal coherence, and go beyond realism by grounding this attack on a political analysis. In both cases, moreover, that analysis asserts that law is produced by political and economic elites for the purposes of securing their positions. By thus attributing the incoherence of doctrine to political causes, both law and economics and critical legal studies join doctrinal analysis to larger jurisprudential questions in a manner that was not true for legal formalism, legal realism, or the legal process school. The two movements are further allied in their heavy dependence upon nonlegal methodologies. For the first time, two large groups of legal scholars were prepared to abandon the idea that law is an autonomous or quasi-autonomous system that provides its own analytic tools, and look to other disciplines for the main elements of their analytic framework.

3. The Topography Of Legal Scholarship At The Beginning Of The Twenty-first Century

3.1 Late Twentieth-Century Law And Economics

Law and economics remains a robust tradition within legal scholarship, and much work continues to be done according to the Chicago School model that assumes rational, self-interested actors and smoothly functioning markets. But the criticisms of this approach by legal scholars, combined with the internal evolution of the field, have led to an increasing body of post-Chicago Law and Economics scholarship. One theme of this work, reflecting developments in economics itself (Williamson 1985), is that institutional arrangements exercise powerful effects in structuring behavior. Since legal actors generally function in an institutional context, this has proven to be a productive line of inquiry. Positive political theory, which treats institutions themselves as rational actors, has also been utilized in current legal scholarship to take institutional factors into account (Eskridge and Frickey 1994, Georgetown Law Journal 1992). A second, and related, theme is that internalized norms exercise powerful effects that conflict with the self-interest, or at least the immediate self-interest, of the actor. Some scholars argue that legal rules can be regarded as internalized norms that reflect varying degrees of long-term rational self-interest (University of Pennsylvania Law Review 1996); others assert that particular communities, such as merchants in a given trade (Bernstein 1996), or farmers in a given area (Ellickson 1991), engage in heavily norm-determined behavior that strongly affects the impact of official law on these communities. The combined effect of focusing on institutions and on norms has been to modify, without eliminating, the external perspective that law and economics generally adopts. Law is not being treated as presumptively coherent, but its internal structure is being given a role that followers of the Chicago School tend to deny.

Still another influence on law and economics has been the attack on human rationality by cognitive psychologists (Kahneman et al. 1982). This work, which is heavily empirical, has revealed that people, at least in laboratory settings, are irrationally optimistic, irrationally attached to the status quo, or irrationally influenced by the way that choices are presented. Legal scholars have applied these results to a variety of settings, such as jury decisions, contracting behavior, and policy making, and have also begun conducting their own empirical research to study behavior that is relevant to specific legal situations (Jolls et al. 1998, Vanderbilt Law Review 1998). Thus, the effort to develop an account of human behavior that is more realistic and more modulated that the rational actor model of law and economics has lead to the extensive incorporation of a second discipline, psychology, into legal scholarship.

3.2 Outsider Scholarship

Critical legal studies has been succeeded by a series of movements that tend to refer to themselves as Outsider Scholarship. They include critical race theory, feminist theory, and gay legal studies. While it cannot be said that critical legal studies itself is entirely moribund, its role within the academy has been largely replaced by these latter movements, which share its critical approach but contest its particular conclusions. Outsider scholarship, like critical legal studies, asserts that law is an instrumentality of hierarchy and social domination, but it rejects economic class analysis as an explanation for this phenomenon. Instead, it argues that more specific prejudices are involved, namely, the prejudice of the racial majority against minorities like African-Americans, Latinos, and Native Americans, the prejudice of men against women, and the prejudices of heterosexuals against gays and lesbians (Bell 1987, MacKinnon 1989, Eskridge 1994).

One result of this approach is to create a critical scholarship with a more direct connection to American politics; while class has never been a salient political issue in the United States, race, gender, and sexual orientation are all subjects of active political movements. Another, and not unrelated result, has been to decrease the breadth of the critical attack on law. Critical legal studies tends to regard law in its entirety as an oppressive device that hides its true effect behind a facade of objectivity. Outsider scholarship, because it concerns social phenomena that are less comprehensive than class, views law as oppressive because it has denied outsiders the benefits it grants to the dominant group. Its prescription, therefore, is not to abandon or even transform law, but to provide law’s benefits to the outsiders, fulfilling the promise that it has thus far denied.

The effect of this outsider scholarship is thus to modify the external perspective of its predecessor. Law is still viewed with suspicion, but its role as a system with internal values is affirmed. For example, instead of arguing that rights are illusory, or an impediment to genuine equality because they can only be validated through litigation, outsider scholarship tends to argue that the disadvantaged cannot afford to wait for such comprehensive transformations, but should use the concept of rights to achieve a more limited but more accessible equality within the existing system (Williams 1991).

Outsider scholarship shares the critical legal studies view that legal concepts are social constructions that serve specific purposes, often those of dominant elites, and that these concepts are radically indeterminate. But it has not relied as heavily on the indeterminacy argument. As many scholars have pointed out, the argument is itself too indeterminate, since it lacks the criteria to judge how determinate the law could be, and how much determinacy is desirable (Kress 1989). In addition, most legal scholars recognize that the indeterminacy argument does not necessarily lead to the political conclusions that critical legal studies advanced. Thus, outsider scholarship analyzes legal rules in fairly traditional terms. Its methodological innovation has been its extensive use of narrative, or story telling, as a means of communicating the personal experience of oppression that racial minorities, women, or gays and lesbians have experienced (e.g., Bell 1987, Eskridge 1994). While this has a literary quality (when done well, at least), it is not related to literary criticism or to the methodology of any other discipline. Rather, it is a technique that is intended to appeal to the values of the reader within the framework of legal scholarship and the legal system.

3.3 Standard Legal Scholarship

Throughout the period when law and economics and critical legal studies were articulating their critique of law and of the legal process school, standard legal scholarship continued to be written. At that time, and at present, it constituted the largest proportion of the legal scholarship being produced. It is standard because of its quantity, but also because it is not explicitly identified with any particular school of thought or methodology. In fact, this scholarship can be loosely regarded as a continuation of the legal process school. Like legal process, it acknowledges that law is subordinate to politics, but treats legal rules as a body of doctrine that has enough coherence to generate analytic standards. In addition, it shares the legal process view that the participants in the legal system, particularly judges, but also legislators and administrators, are public-oriented enough so that scholarly prescriptions for improving their decisions can be addressed to them (e.g., Choper 1980, Dworkin 1986, Ely 1980). The standard scholarship that is currently being produced differs from its predecessors because it has at least partially absorbed the lessons of both law and economics and critical legal studies, although without accepting their critique of law’s legitimacy (Rubin 1996).

Most legal scholars now acknowledge that viewing legal actors as public-oriented is problematic. They recognize that these actors are sometimes motivated by their material self-interest, and sometimes intent on preserving existing hierarchies and class relations. Thus, they do not see the legal system as a realm of reasoned, public-oriented decision making that transcends politics, as legal formalism did, nor as a realm of reasoned, public-oriented decision making that is circumscribed by politics but insulated from it, as legal process did. Rather, politics both sets the limits of the legal system and intercalates itself into particular legal decisions. But standard scholarship rejects the notion that decision makers are motivated by any uniform value system, whether it is self-interest, prejudice or public orientation; the prevailing attitude seems to be that some degree of conscientiousness can be assumed, but that the actual motivations must be sorted out in particular situations.

Methodologically, standard scholarship has assimilated the idea that law is not a quasi-autonomous system that provides its own analytic tools. Scholars regularly rely on informal law and economics or public choice insights in analyzing the behavior of public officials, and, to a lesser extent, on the insights of critical theory. More importantly, these scholars regularly incorporate data from other fields, such as political science, sociology, economics, and psychology, in framing recommendations. The criterion for stating that a particular legal decision, whether by a judge, legislator, or administrator, is incorrect, or could be improved, is less likely to be the internal coherence of legal doctrine, and more likely to be some judgment about social welfare. Such judgments will frequently involve empirical information generated by another discipline and will almost always acknowledge, implicitly if not explicitly, that such information is relevant to the conclusion.

3.4 Contemporary Sociolegal Studies And Legal Knowledge

These developments in law and economics, outsider scholarship, and standard legal scholarship represent a process, extending over the entire course of the twentieth century, by which the distinctions between internal and external scholarship, and between jurisprudence and doctrinal studies, have been partially effaced. This process has important implications for the prevailing conception of legal knowledge, implications which can be illustrated by considering a fourth aspect of contemporary scholarship, namely, sociolegal studies.

The sociology of law, as developed by nineteenth century scholars such as Maine and Savigny, was originally a jurisprudential position, articulated in opposition to the universalist claims of both natural law and the Napoleonic Code. Its basic insight was that law is the product of particular cultures. With the growth of academic sociology and anthropology, this became translated into detailed studies of legal behavior that were more specific, but also more external to the legal system that they studied. Rather than focusing on the internal coherence of the system, or the experience of its participants, sociolegal work treated law as a phenomenon to be determined by examining the behavior of relevant actors. Legal scholars typically ignored such studies because they regarded law as a self-contained, meaningful system that generated its own criteria of analysis.

In response to the attack on the entire concept of law by law and economics and critical legal studies, most legal scholars now recognize that law possesses only a provisional coherence. Its value is no longer determined by its internal logic, but by its ability to achieve political and social goals. For most scholars, however, law is not simply a set of unrelated provisions that achieve these goals, but a system with both institutional and conceptual features. To have legal knowledge, one must be familiar with the features of this system; to use this knowledge, one must make predictions, or prescriptions, about the way this system achieves independently determined goals. Thus, data from fields such as economics, sociology, political science, anthropology, and psychology becomes directly relevant to legal scholarship. Some of this data comes from work that is not specifically concerned with law, such as organization theory or cognitive psychology, but a good deal comes from modern sociolegal studies, where law is the social scientist’s explicit concern. But this work, however useful, does not displace legal scholarship. The legal scholar still has a crucial role in determining how such data will be used by the institutional and conceptual elements of the legal system. In fact, legal scholars have recently begun to re-emphasize these conceptual elements, arguing that, within a richly described social context, law possesses a wide range of symbolic and constitutive roles (Habermas 1996, Lessig 1995, Luhmann 1995). Sociolegal scholars have come to recognize this as an empirical fact, and have thus taken advantage of legal scholarship’s greater receptivity to social science data by engaging more fully with the internal features of the legal system. The result is a partial effacement of the distinction between external and internal scholarship, without its complete elimination.

The challenge to the concept of law, the multiplicity of responses, and the greater methodological range of the resulting scholarship has also partially effaced the distinction between jurisprudence and doctrinal studies. Basic questions about the nature and purpose of law, and the nature of legal knowledge, must now be resolved by scholars engaged in detailed doctrinal analysis. Such questions can be ignored, of course, in the interest of simplicity, but the work will be open to challenge by those who question its basic premises. Again, the distinction has not been entirely eliminated; as a practical matter, many scholars content themselves with an analysis of doctrine within one or another subdisciplines of legal scholarship, and let others fight the more theoretical battles on their behalf. But most recognize that the status of their work as legal knowledge depends on theoretical arguments in a more immediate way than was true a century before. These developments can be illustrated by considering some of the principal topics of modern sociolegal studies. One notable social science approach to judicial decision making in the early postwar era were the judicial attitude studies that treated court decisions as a pure reflection of the judge’s ideology, uninfluenced by legal doctrine (Schubert 1959, Ulmer 1960). While work of this sort continues to be produced, often by the same authors, more recent social science studies of judicial decisions tend to emphasize the interplay between ideology and doctrine (Perry 1991, Shapiro 1981), a process which enables legal scholars to utilize their findings and extend them into jurisprudential areas (Feeley and Rubin 1999, Kennedy 1997, Tamanaha 1997). A second distinctive strand during the early postwar period emphasized the discontinuity between the law on the books and the law in action. Modern sociolegal studies often recharacterize this issue in terms of the implementation process, which involves an analysis of the interplay between statutory or regulatory language and the realities of administrative enforcement (Bardach and Kagan 1982, Coglianese 1997). Once again, such an approach yields jurisprudential implications more readily than its predecessor, since it replaces an inevitable abyss between written and practiced law with a dynamic interchange where the practice suggests a reconsideration of the legal structure (Ayres and Braithwaite 1992, Kagan 2000).

A related development is the sociolegal analysis of contracts. The seminal work in the field emphasized that contract law, as reflected in the decided cases that were the exclusive focus of most law school courses, did not exercise the dominant effect on contractual practices; rather, the relationship between the parties and their underlying cultural understandings were the primary determinants (Macaulay 1963, MacNeil 1980). Building on this insight, and incorporating the lessons of contemporary law and economics, legal scholars have been able to analyze the practical operation and effect of specific contractual terms (Gilson 1984, Hadfield 1990). In effect, modern sociolegal scholars are now engaging with the specific contractual language, just as they are engaging with the internal aspects of legal doctrine and statutory provisions.

Bibliography:

1. Ayres I, Braithwaite J 1992 Responsive Regulation. Oxford University Press, New York
2. Bardach E, Kagan R 1982 Going by the Book. Temple University Press, Philadelphia, PA
3. Bell D 1987 And We Are Not Saved: The Elusive Quest for Racial Justice. Basic Books, New York
4. Bernstein L 1996 Merchant law in a merchant court: Rethinking the code’s search for immanent business norms. University of Pennsylvania Law Review 144: 1765
5. Bickel A 1962 The Least Dangerous Branch. Bobbs-Merrill, Indianapolis, IN
6. Choper J 1980 Judicial Review and the National Political Process. University of Chicago Press, Chicago
7. Coglianese C 1997 Assessing consensus: The promise and performance of negotiated rulemaking. Duke Law Journal 46: 255–1349
8. Dworkin R 1986 Law’s Empire. Belknap Press, Cambridge, MA Easterbrook F 1983 Statute’s domains. University of Chicago Law Review 50: 533
9. Edelman L B Legality and the endogeneity of law. In: Kagan R A, Krygier M, Winston K (eds.) Legality and Community: On the Intellectual Legacy of Philip Selznick. Institute of Governmental Studies Press Rowman & Littlefield, Berkeley, CA
10. Ehrlich E 1975 The Fundamental Principles of the Sociology of Law. Russell & Russell, New York
11. Ellickson R 1991 Order Without Law. Harvard University Press, Cambridge, MA
12. Ely J 1980 Democracy and Distrust. Harvard University Press, Cambridge, MA
13. Eskridge W 1994 Gaylegal narratives. Stanford Law Review 46: 607
14. Eskridge W, Frickey P 1994 The Supreme Court, 1993 term: Foreword: Law as equilibrium. Harvard Law Review 108: 26
15. Feeley M, Rubin E 1999 Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons. Cambridge University Press, New York
16. Finnis J 1980 Natural Law and Natural Rights. Clarendon Press, Oxford, UK
17. Fuller L 1964 The Morality of Law. Yale University Press, New Haven, CT
18. Fuller L 1978 Forms and limits of adjudication. Harvard Law Review 92: 353
19. Georgetown Law Journal 1992 Symposium: Positive political theory and public law. Georgetown Law Journal 80: 457
20. Gilson R 1984 Value creation by business lawyers: Legal skills and asset pricing. Yale Law Journal 94: 239
21. Hadfield G 1990 Problematic relations: Franchising and the law of incomplete contracts. Stanford Law Review 42: 927
22. Habermas J 1996 Between Facts and Norms (trans. Rehg W). MIT Press, Cambridge, MA
23. Hart H L A 1961 The Concept of Law. Clarendon Press, Oxford, UK
24. Horwitz M 1977 The Transformation of American Law. Harvard University Press, Cambridge, MA
25. Jolls C, Sunstein C, Thaler R 1998 A behavioral approach to law and economics. Stanford Law Review 50: 1471
26. Kagan R 2000 The consequences of adversarial legalism. In: Kagan R, Axelrad L (eds.) Regulatory Encounters, pp. 372–413
27. Kahneman D et al. 1982 Judgment Under Uncertainty: Heuristics and Biases. Cambridge University Press, New York
28. Kelsen H 1967 Pure Theory of Law (trans. Knight M). University of California Press, Berkeley, CA
29. Kennedy D 1997 A Critique of Adjudication: Fin de Siecle. Harvard University Press, Cambridge, MA
30. Kress K 1989 Legal indeterminacy. California Law Review 77: 283–337
31. Lessig L 1995 The regulation of social meaning. University of Chicago Law Review 62: 943
32. Luhmann N 1995 Social Systems (trans. Bednarz J). Stanford University Press, Stanford, CA
33. Macey J 1986 Promoting public-regarding legislation through statutory interpretation: An interest group model. Columbia Law Review 86: 223
34. Macaulay S 1963 Non-contractual relations in business: A preliminary study. American Sociological Review 28: 55
35. MacCormick N, Summers R (eds.) 1991 Interpreting Statutes. Dartmouth, Aldershot, UK
36. MacKinnon C 1989 Toward a Feminist Theory of the State. Harvard University Press, Cambridge, MA
37. MacNeil I 1980 The New Social Contract. Yale University Press, New Haven, CT
38. Olson M 1965 The Logic of Collective Action. Harvard University Press, Cambridge, MA
39. Posner R 1972 Economic Analysis of Law. Little, Brown, Boston
40. Priest G, Klein B 1984 The selection of disputes for litigation. Journal of Legal Studies 13: 1
41. Rubin E 1996 The new legal process, the synthesis of discourse, and the microanalysis of institutions. Harvard Law Review 109: 1393–438
42. Schauer F 1988 Formalism. Yale Law Journal 97: 501–48
43. Schlegel J H 1995 American Legal Realism and Empirical Social Science. North Carolina Press, Chapel Hill, NC
44. Schubert G 1959 Quantitative Analysis of Judicial Behavior. Free Press, Glencoe, IL
45. Shapiro M 1981 Courts: A Comparative and Political Analysis. Chicago University Press, Chicago
46. Simon H 1957 Administrative Behavior.
47. Tamanaha B 1997 Realistic Socio-legal Theory. Clarendon Press, Oxford, UK
48. Ulmer S 1960 The analysis of behavior patterns in the Supreme Court of the United States. Journal of Policy 22: 429
49. Unger R 1975 Knowledge and Politics. Free Press, New York
50. University of Pennsylvania Law Review 1996 Symposium: Law, economics and norms. University of Pennsylvania Law Review 144–1643
51. Vanderbilt Law Review 1998 The legal implications of psychology: Human behavior, behavioral economics and the law. Vanderbilt Law Review 51: 1495–788
52. Wechsler H 1959 Toward neutral principles of constitutional law. Harvard Law Review 73: 1
53. Williams P 1991 The Alchemy of Race and Rights. Harvard University Press, Cambridge, MA
54. Williamson O 1985 The Economic Institutions of Capitalism. Free Press, New York