The Common Law Tradition: A Collective Portrait of Five Legal Scholars (original) (raw)

Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870–1970 (Oxford and New York: Oxford University Press, 2015), pp. 460, $53 (hardcover). ISBN 978-0-19933-130-7

Journal of the History of Economic Thought, 2017

voracious reader and amply enjoyed the library privileges of his association with Harvard University. Lippmann's bookishness and elitism have earned him the title of 'public philosopher,' and that moniker is apt also because he spoke of his work as the work of "public reason," a phrase that was dear to Enlightenment philosophers. Following this ideal, Lippmann understood the journalist's role to be like that of the scholar in search of truth emancipated from authority, prejudice, and interest. The public space was not a marketplace of ideas and not an arena for the contest of passions; it was a space in which to inscribe the work of informed argument. Goodwin anoints Lippmann as a "public economist" and rightly notes that there has been none like him. It may be that Goodwin intends us to treat Lippmann as an economist. If that is so, the record of his originality is not compelling. I would endorse the alternative that Lippmann is a public economist in the sense of pursuing "public reason" on matters of economic policy. Lippmann did not believe that the public, on its own and even with his aid, could have the knowledge and discipline to govern. Lippmann was not a "persuader" in the style of his friend Keynes, or Milton Friedman or Paul Krugman, seeking to mobilize a popular outcry. Lippmann was not an "explainer" in the style of Leonard Silk or David Warsh, soliciting deference to the work of experts. Matters of economic policy required, for Lippmann, a higher court than the testimony of credentialed experts or an assembly of newspaper readers. Only the use of reason-vivid, synthetic, and conclusive-was fi t to sit in judgment of civic matters. There never will be another Lippmann, because this plausible and old-fashioned ideal is ill fi tted to a public culture that is bitterly polarized and cynical. Public intellectuals are not dead, but they are no longer men of reason.

Mark Tushnet's Thurgood Marshall and the Rule of Law

2008

This essay, written for a symposium issue of the Quinnipiac Law Review on the work of Mark Tushnet, takes up Tushnet's writings on Thurgood Marshall. Tushnet's body of scholarship on Marshall includes two books, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991; an edited collection: Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences; and many articles and essays. Tushnet follows Marshall from his early career as a civil rights lawyer through his service on the United States Supreme Court, focusing more than other biographers on Thurgood Marshall as a lawyer, and paying particular attention to Marshall's conception of the rule of law.The essay explores Marshall's understanding of the rule of law, bringing in the example of Marshall's confrontation with Kenya's first president, Jomo Kenyatta, in 1963, and the tension betwee...

Roger K. Newman, editor, The Yale Biographical Dictionary of American Law, New Haven, Conn.: Yale University Press, 2009. Pp. xiii + 622. $65.00 (ISBN 978-0-300-11300-6)

Law and History Review, 2010

There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.