Because common-law doctrines have long served as targets for critical theorists, it would be easy to see the common law and critical theory as essentially antagonistic with each other. But that would be a mistake. In fact, both critical theory and the common law-or, at least, one interpretation of the common law-license a quite similar, and similarly holistic, form of reasoning. Specifically, they both draw normative inferences from explanatory claims and vice versa. This symposium essay uses a case study to illustrate this quite general point. Catharine MacKinnon's revolutionary argument that sexual harassment constitutes sex discrimination under the Civil Rights Act of 1964 is a vivid example not only of critical theory but also of an holistic interpretation of the common law. Because common-law reasoning and critical theory are analytically compatible in this way, I conclude by suggesting that each tradition has something to learn from the other.
Citation
Charles Barzun, The Common Law and Critical Theory, 92 University of Colorado Law Review, 1221–1236 (2021).
More in This Category
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school...
More
This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
More
There is one group that the court does not put into an identity straitjacket—those claiming religious exemptions.
More
John C.P. Goldberg
This special issue of the Yale Journal of Law and the Humanities contains papers presented at a March 2022 conference at Yale Law School marking the...
More
Brandon Garrett
Across multiple national surveys sampling more than 12,000 people, we have found that a majority of Americans, more than 60 percent, consider false...
More
Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
More
This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated and how they have influenced the...
More
Philosophers have debated whether the advance directives of Alzheimer’s patients should be enforced, even if patients seem content in their demented...
More
This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo...
More
offers a preliminary legal history of the white supremacist and anti-Semitic violence that took place in my hometown of Charlottesville, Virginia on...
More
Sandy Levinson has always taken secession arguments seriously. This is, in my eyes, one of his great virtues. There are very few scholars who would be...
More
Although Lon Fuller’s importance and reputation among those who practice general jurisprudence remains contested, it is clear that he remains a major...
More
Both statutory and constitutional law prohibiting discrimination forbid actions taken on the basis of certain traits. But rarely are those traits...
More
It was 1804, and Thomas Ruffin, future Chief Justice of the North Carolina Supreme Court, was having doubts about slavery. Ruffin was a young student...
More
This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the...
More
What shapes judicial temperament? What hones judicial style? Seeing as judges are grown in neither a hothouse nor a test tube, presumably they attain...
More
This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient...
More
Analysis based on Hohfeld’s analytical system shows that liability rules, as defined by Guido Calabresi and A. Douglas Melamed, are a false category...
More