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Vol 21 No 11 Nov/Dec 2016

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A Critique of Adjudication

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Duncan KennedyProfessor of General Jurisprudence, Harvard Law School, USA

ISBN13: 9780674177604
ISBN: 0674177606
Published: February 1997
Publisher: Harvard University Press
Format: Hardback
Price: Out of print



The political nature of legal, and especially judicial, decision making is the subject of this book. It attempts to integrate the American approach to law, an uneasy balance of commitment and intense skepticism, with the Continental tradition in social theory, philosophy and psychology. The centre of this work is the question of how politics affects judicial activity, and how in turn lawmaking by judges affects American politics. Opposing views on whether law is political in character are considered, and the author puts forward his own theory of adjudication that includes accounts of judicial rhetoric and the experience of judging.

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Contents:
Part 1 Ideological stakes in adjudication: the distinction between adjudication and legislation; ideological conflict over the definition of legal rules.
Part 2 The problem of judicial legislation: the paradox of American critical legalism; policy and coherence.
Part 3 Ideology in adjudication: policy and ideology; ideologically oriented legal work; strategizing strategic behaviour in interpretation.
Part 4 Consequences of adjudication: the moderation and empowerment effects; the legitimation effect; adjudication in social theory.
Part 5 Post rights: rights in American legal consciousness; the critique of rights; conclusion - landscapes along the highway of infinite regress.