jurisprudence and first day of class

I will normally try to write one or two essays and post them the day before our class discussion. These essays will both summarize what I think are some important points to know about the reading as well as to pose questions which should be fruitful for discussion. You will be prepared for class if you think you have something intelligent to say about the questions I raise, based on the texts assigned and other reading you may have done. I plan to cover the following five issues in class on Tuesday 8/22.

1. After I learn who you are, I want to go directly to the dictionary definition of jurisprudence. Be sure you are familiar with it. I give it here. I want to expand on this definition by including the idea that, for me, jurisprudence is not simply the process of figuring out the "nature" of law (whatever that means), but of thinking about law in general. By thinking about law I mean not how to write a memo for a particular case you are working on but how to relate legal concepts together, how to think about how law has evolved, how to connect legal to social/intellectual/cultural developments around us.

2. Then I want to move to my mini-essay in which I discuss my methodological commitments in studying jurisprudence. That essay is here. What are the four "orientations" that I discuss? How does this stack up with what you have done in law school to date?

3. The scope of the course. Here I will go over the syllabus with you, making sure we have a common understanding of what I expect in the class.

4. Long's Eight Theses on Law and Its Paradoxes. As an exercise in getting us started thinking about law in general, I submit the following eight observations to you, culled from my experience in legal study, writing and practice. Some are straightforward observations, and some are paradoxical statements. We will probably take some time to discuss some of these in class.

a. Law cannot be separated from the people who do law. Law, therefore, is a humanistic discipline.

b. Law seeks to develop rules that apply to each situation, but almost every situation is unique.

c. Law is moved and even driven by facts, yet it has an ambivalent approach to facts. Witness the standard of review of appellate courts. Facts are rarely subject to re-examination.

d. Law wants to give definitive and clear answers to questions, but the more answers that are given, the more questions remain or arise.

e. Law neither leads nor follows cultural change, but it mirrors or marks it. We are all buffeted in our little boats by the waves of cultural change; the Supreme Court is next to us on the water in a slightly larger boat.

f. Law is now primarily statutory, but we teach law as if it is still a common law endeavor.

g. The more law seeks neutral and objective language (i.e., in the language of appellate opinions), the more irrelevant it becomes. Law needs to rediscover some of the pictorial language of its roots.

h. Law cannot be understood apart from an intimate acquaintance with the cultural and intellectual flow of its times.

5. The following questions or comments will help you understand and comment on Patterson's article.

a. Which definition of jurisprudence does Patterson seem to adopt or, at least, to favor in his article?

b. In what way does Patterson think that studying jurisprudence will be helpful for law students?

c. He speaks of two intellectural currents or movements we need to understand in American history in order to understand current jurisprudence. What are they?

d. He then gets into a fairly long discussion of Postmodernism. How does he "get there" in his talk/paper? Does he try to define it for us?

e. Whom do we need to understand, according to Patterson, in order to be rightly prepared to learn about and appreciate the postmodernist world in which we live?

f. How did each one of the three precursors to Postmodernism he discusses contribute to the intellectual world in which we find ourselvses today?

g. Why does he close his article by bringing in the example of Karl Llewellyn and contract law?

This ought to keep us going for 90 minutes, I think.

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