Faculty Bibliography
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This interdisciplinary study examines the relationships between law and the humanities.
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This unpublished draft paper posted here as written in 1998, suggests that in deciding whether to impose compulsory terms in consumer contracts the most important criterion should be whether their ex post distributive consequences are desirable from an ethical/political point of view. It then identifies a subclass of terms that operate analogously to compulsory insurance, including among many others product liability and mortgagor and consumer borrower protections. It models the results of the term for three income classes that differ both in their preferences for protection and in the cost of protecting them. The term generates cross subsidies among them and also withdrawals from the market. These are the ex post distributive stakes in the choice to make the term compulsory. The paper then demonstrates that in some circumstances imposed insurance-like terms plausibly generate significant cross subsidies from the upper and middle to the lower income group. These are stable when transaction costs prevent sellers from pricing to keep the poor separate from the rich and the middle. The focus on ex ante efficiency and on distribution between buyers and sellers has obscured cross subsidies between rich and poor buyers. One result has been the common but incorrect argument that because poor buyers likely value compulsory terms less than the rich, compulsion “hurts the people it is trying to help.” The paper shows that it is precisely because of this difference in valuation that existing compulsory terms can function to redistribute and that new ones may be justified on the same basis.
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A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation.
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This excerpt from "A Critique of Adjudication [fin de siècle]" (1997) describes, compares and contrasts the Critical Legal Studies approach to the question of the relationship of law and economy (including the "base/superstructure" debate) with Neo-Marxist theories popular at the time.
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Duncan Kennedy argues that an American radicalism is both possible and desirable. One base for radical politics is the big institutional workplace; another is popular culture--whence his emphasis on phenomena like sexy dressing. Kennedy's aim is to wed the rebelliousness, irony, and irrationalism of cultural modernism and postmodernism to the earnestness of political correctness.
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Duncan Kennedy, Legal Education as Training for Hierarchy, in The Critical Lawyers' Handbook (Ian Grigg-Spall & Paddy Ireland eds., 1992).
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This paper attempts to describe the process of legal reasoning as I imagine I might do it if I were a judge assigned a case that initially seemed to present a conflict between "the law" and "how-I-want-to-come-out." Such a description, if at all true to experience, may be helpful in assessing the various claims about and images of law that figure in jurisprudential, political, and social theoretical discussion. It may also be helpful in assessing what law teachers teach future lawyers about the nature of the materials they will use in their profession. But I will have little to say about these implications, aside from a polemical afterword.1 I am not sure what difference it makes to the phenomenology of adjudication whether I begin with this situation rather than another. The whole experience of law may be sufficiently the same thing through and through so that wherever you start, you end up with approximately the same picture. Or it may be that there is no experience of legality that's constant without regard to role and initial posture of the case. What I am convinced of is the need to start with some particularization. I don't find myself at all convinced when people start out claiming they can tell us about judging without some grounding in a specific imagined situation.
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Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Education 591 (1982).
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Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient, 8 Hofstra L. Rev. 711 (1980).
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Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient, 8 Hofstra L. Rev. 711 (1980).
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