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Abstract:
This is a substantially expanded and revised version of a paper posted earlier, which will appear in the peer-review journal, I/S: A Journal of law and Policy for the Information Society.

Commercial parties continue to fight the battle of the forms, but electronic contracting is quickly rendering this practice obsolete. In this article I assess the legal landscape for commercial parties after the battle of the forms. In Part One, I briefly describe the (relatively) settled law under U.C.C. 2-207, describe how these rules permit commercial parties to erect a force-field to protect themselves from being subjected to unwanted terms, describe the developments in web-based contracting and recent case law applying contract formation principles to electronic contracting, and then discuss how the growth of electronic contracting will eliminate the battle of the forms that triggers the application of U.C.C. 2-207 and also will make it difficult for commercial parties to replicate the force-field protection to which they have grown accustomed.

In Part Two, I discuss the two primary doctrinal options available to address contracting realities for commercial parties once the electronic age of contracting has eliminated the battle of the forms. The debacle surrounding Revised Article 2 suggests that the only plausible response as the theater of operations shifts from the battle of the forms to the world of electronic contracting will be judicial rather than legislative. Although unconscionability analysis might be a plausible doctrine to address egregious cases, I conclude that the doctrine is too closely aligned with consumer protection to make it a viable theory for commercial parties. Instead, I argue that rehabilitating the doctrine of reasonable expectations holds the most promise for addressing the commercial contracting world after the battle of the forms. This approach enjoys the benefit of being grounded in Karl Llewellyn's theory of the validity of standard form contracts, is consonant with one of the important guiding principles of Article 2, and will be sufficiently defined by the commercial context to permit consistent application by courts policing the margins of acceptable contracting practices.

Contracts, Sales, Electronic Contracting, Battle of the Forms, Unconscionability, Reasonable Expectations, Karl Llewellyn

Abstract:
This article will appear as part of a Symposium on "Nietzsche and Legal Theory" to be published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory.

Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At the other end of the spectrum, Nietzsche's perspectival hermeneutics is seemingly nothing but thoroughgoing critique, to the point of collapsing into irrationalism under certain postmodern readings. This article develops a critical hermeneutics by demonstrating that philosophical hermeneutics can accommodate Nietzschean critique.

I set the stage for the paper by recounting Allan Hutchinson's Nietzschean-inspired claim that radical critique in the tradition of the critical legal studies movement provides a necessary antidote to Gadamer's hermeneutical conventionalism, and then I provide an overview of Nietzsche's hermeneutical philosophy in terms of his naturalism and perspectivism. In the heart of the article I draw connections between Nietzsche and Gadamer by comparing perspectivism and fusion of horizons, their treatment of rhetoric and aesthetics, and their investigation of the critical power of tradition. I then develop the connections between these two thinkers through a close and critical reading of Gianni Vattimo's "weak thought," and conclude the article with a consideration of Supreme Court jurisprudence on the legal status of gays and lesbians in contemporary society. Arguing that the Supreme Court opinions fail on hermeneutical grounds, I suggest that Nietzschean critique helps to supplement our understanding of legal practice and also provides helpful insights to legal theorists.

Gadamer, Nietzsche, Vattimo, hermeneutics, critical theory, critical legal studies, gays and lesbians

Abstract:
Postmodern thinking puts severe stress on the project of legal theory. The philosophical critique of grand narratives, coupled with the radically pragmatic return to localized practices, has rendered theorizing suspect. Theory appears to be a quaint vestige of previous "bad faith" refusals to accept the finitude of human existence. But the postmodern position is even more complex, because postmodern anti-theorists tend to employ perplexing jargon and wield sophisticated and obscure concepts in their work. The postmodern puzzle is whether one can challenge theory without theorizing.

Is theory defined by its practical effects, or by its refusal to become complicit in everyday practices? Is the urge to theorize a product of modernist ideology that leads us astray, or our openness to enlightenment? Although postmodern thinking has made these questions particularly pressing, they are timeless. Therefore, it should not be surprising that contemporary readings of Aristotle can provide a helpful guide for uncovering the possibilities of postmodern legal theory. I address the postmodern puzzle regarding the nature of theory and its relationship to practice by drawing from the contemporary appropriations of Aristotle's practical philosophy by Martin Heidegger, Hans-Georg Gadamer and Joseph Dunne.

My goal is to outline the role that critical legal theorists can play in light of the neo-Aristotelian account of theory that emerges from this discussion. Although this account reinforces the postmodern critique by revealing that the image of the sovereign theorist who stands as expert commentator to the side of legal and social practices is an ideological myth, this does not mean that theory is irrelevant. Once theory is reconceived as a disposition within practice, its unavoidable significance becomes clear. The practical demand for judgments, combined with the normative injunction to do justice, makes law a particularly important venue for investigating the entwinement of theory and practice. I conclude by suggesting that critical legal scholarship by Bill Eskridge and Kathryn Abrams provide examples of this dynamic of theory and practice.

Postmodern, theory, Aristotle, Heidegger, Gadamer, Dunne, psychotherapy, critical theory, feminist theory, statutory interpretation

Abstract:
This short paper will appear in a volume of original essays, On Philosophy in American Law (Francis J. Mootz III ed., Cambridge Univ. Press forthcoming 2009). I argue that the undeniable rift between philosophy and law is more than a simple dichotomy of theory and practice. Instead, the sharp distinction between philosophy and law occurred when both disciplines built insular guilds that employed distinctive vocabularies to distinguish themselves from rhetoric, and it is by returning to their roots in rhetoric that philosophy and law might find their common ground in the elucidation of rhetorical knowledge.

Philosophy, Law, Gadamer, Perelman, rhetorical knowledge, rhetoric, Plato, sophists

Abstract:
As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer's philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche's caustic critical challenges, but that Gadamer's hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche's philosophy, I argue that Gadamer responds to Nietzsche's challenge in a manner that is exemplified in the critical dimensions of legal practice. Using the example of family law that Smith offers, I contend that Smith underestimates the critical and interpretive elements inherent in legal practice and captured in Gadamer's philosophy. I conclude that Gadamer offers a persuasive answer to Nietzsche's challenge.

hermeneutics, critical theory, deconstruction, Heidegger, Gadamer, Derrida, P. Christopher Smith, Family Law

Abstract:
Law is a practice that claims to be aligning itself with objective truth: "The Law." Natural law theories justified this state of affairs for centuries, but in the wake of the collapse of traditional natural law theories there appears to be no ontological account of law that does credit to the depth of the practice. In particular, legal positivism has failed to fulfill its promise to provide guidance after the eclipse of natural law.

Using Steven Smith's, "Law's Quandary," as a touchstone, I will account for the ontology of law in a naturalistic manner, but without relapsing to traditional natural law accounts. I draw guidance from contemporary theories of rhetoric and hermeneutics, and conclude that law's quandary is really life's quandary, but that we can account for the quandary in satisfactory and productive ways.

Natural law, Hermeneutics, Rhetoric, Steven Smith, Law's Quandary, Hans-Georg Gadamer, Chaim Perelman, Aristotle, Rhetorical Knowledge

Abstract:
Liability insurers generally do not owe any common law duties to injured third-party claimants who sue their insureds. After establishing (as a conceptual backdrop) the important and recognized public policies favoring prompt and fair payments by liability insurers to injured third-party claimants, this article analyzes whether claimants can effectively use the tort of abuse of process to hold liability insurers accountable when they engage in bad faith litigation tactics. The article identifies the problems that claimants may face in alleging abuse of process in the liability insurance setting, but also indicates that recent trends in this area of law suggest that it may provide an effective, even if relatively limited, means of holding liability insurers accountable for the additional injury that they cause to third-party claimants.

Abuse of Process, Malicious Defense, Insurance Bad Faith, Liability Insurance

Abstract:
Legal education fails students by not appreciating the rhetorical basis of legal reasoning and argumentation. I draw from Vico's "On the Study Methods of Our Time" and Llewellyn's legal realism; both argued that law and legal reasoning are exemplary sites of rhetoric. I suggest that contemporary cognitive studies of the metaphorical structure of human understanding and the initiatives of the "new legal realism" carry forward the insights of Vico and Llewellyn. This re-orientation corrects the shallow and instrumentalist outlook of most lawyers.

Giambattista Vico, Karl Llewellyn, Legal Education, Rhetoric, Carnegie Report, Metaphor, Legal Reasoning, Argumentation, Mark Johnson, The New Legal Realism

Abstract:
The rhetorical dimensions of Gadamer's philosophical hermeneutics have not been fully developed by his commentators, resulting in an overly conservative rendering of his philosophy. Drawing out the rhetorical features of his work, we find that Gadamer regards textual interpretation as a rhetorical accomplishment. This characterization leads to a rich conception of critical hermeneutics. The article develops Gadamer's rhetorical hermeneutics by contrasting his approach with Paul Ricoeur's famous intervention in the Gadamer-Habermas debate, and looks to Gadamer's account of legal practice as a manifestation of critical hermeneutics in action.

Rhetoric, Hermeneutics, Critical Theory, Hans-Georg Gadamer, Paul Ricoeur, Legal theory

Abstract:
Chaim Perelman and Lucie Olbrechts-Tyteca published "The New Rhetoric" fifty years ago, renewing interest in the rhetorical tradition and generating a diverse body of scholarship. This article draws from a plenary talk delivered at the international conference, "The Promise of Reason," held at the University of Oregon to mark the publication anniversary. I argue that Perelman's insistence on the absence of certainties and the need for argumentation in matters relating to law and justice has interesting, even if surprising, connections to the natural law tradition. I contend that there are at least three points of convergence: (1) natural law claims are important, and perhaps unavoidable, commonplaces in legal practice; (2) natural law claims can be viewed as invoking Perelman's famous, and often misunderstood, idea of a universal audience; and (3) the natural law tradition can be reconceived by "naturalizing rhetoric," by which I mean recognizing that human nature is rhetorical. A naturalized rhetoric embraces the paradox that non-essentialism is essential to our being, and that we can find a foundation for reflection in anti-foundationalism. I conclude that Perelman's theory of argumentation provides a way to resuscitate natural law theorizing while moving beyond the false certainties that Perelman understood only impede our quest for justice.

Chaim Perelman, Lucie Olbrechts-Tyteca, The New Rhetoric, Rhetoric, Natural Law, Argumentation, Law

Abstract:
Contemporary discussions about the need to reform legal education, culminating in the 2007 Carnegie Report, should be put into a broader historical, philosophical and ethical perspective. Three hundred years ago the Italian humanist, Giambattista Vico delivered his famous oration, "On the Study Methods of Our Time," in which he lamented the rise of Cartesian critical philosophy at the expense of the cultivation of imagination, prudence and eloquence. Vico discussed law and legal education as his primary example, and his oration therefore provides an incredible resource for our contemporary deliberations.

Part One considers the literature addressing the demise of legal professionalism in terms of both theory and practice, with particular attention to work by Karl Llewellyn, Anthony Kronman, and the Carnegie Report. Part Two describes Vico's celebration of the "ingenuous method" of arguing from commonplaces, and shows how he linked this approach to education to law. Part Three considers the import of Vico's work for today's discussions and contends that legal education must seek to cultivate rhetorical knowledge, and that legal professionalism is largely shaped by rhetorical knowledge.

The final version of this article will appear in a Symposium of the Chicago-Kent Law Review entitled, "Recalling Vico's Lament: The Role of Prudence and Rhetoric in Law and Legal Education."

Giambattista Vico, Karl Llewellyn, Anthony Kronman, Prudence, Rhetoric, Hermeneutics, Legal Education, The Carnegie Report, Rhetorical Knowledge

Abstract:
Jaroslav Pelikan's recently published collection of essays considers the similarities between biblical and legal hermeneutics. Although Pelikan offers an erudite and subtle account, I argue that he fails to consider a central question raised by the comparison: the extent to which belief is a prerequisite of interpretation. But the claim that we cannot genuinely interpret a document if we do not believe that it has something to say to us, if we do not anticipate that we can learn from the text, raises a difficulty. If belief is central to interpretation it would appear to consign interpretation to a wholly conventional practice immune from critical insight. Drawing on the work of Gianni Vattimo, I make the somewhat paradoxical argument that belief is not only central to interpretation, but also to critique. I conclude that hermeneutical responsiveness and rhetorical elaboration are entwined expressions of a faithful relation to the text; belief nourishes a critical exegesis, which in turn enriches our beliefs. This is true not only in religion and law, but in life as well.

Jaroslav Pelikan, Gadamer, Gianni Vattimo, hermeneutics, exegesis, critical theory, John Henry Newman, religion, constitutional interpretation, biblical interpretation

Abstract:
This paper was presented at an international conference entitled, "After Ricoeur: An Interdisciplinary Conference," in Oklahoma City in October, 2006. I contend that Ricoeur's famous mediation of the contest between Gadamer's philosophical hermeneutics and Habermas's critical theory is one of his enduring legacies, but that his intervention can be clarified and extended by separating it from the Freudian context he developed in "Freud and Philosophy" and embracing postmodern accounts of psychotherapeutic practice.

Paul Ricoeur, Hans-Georg Gadamer, Jurgen Habermas, critical theory, psychoanalysis, psychotherapy, hermeneutics, philosophical hermeneutics, critical hermeneutics

Abstract:
A long-standing and virtually unchallenged doctrinal rule provides that a liability insurance carrier owes no duties in tort or contract to a third-party claimant who has been injured by its insured. As a matter of doctinal consistency and logic, the traditional rule makes some sense. The liability insurer has no contractual relationship with the claimant, and third-party beneficiary doctrine is not easily used to impose duties. Moreover, by stepping into the shoes of the insured tortfeasor to whom it owes a heightened duty of good faith, the insurer is in an adversarial relationship with the claimant that makes it difficult to argue that the insurer also owes a duty of good faith and fair dealing to the claimant.

Nevertheless, liability insurers can compound the injuries suffered by claimants by refusing to make prompt and fair payments for injuries suffered. For a brief time, the infamous Royal Globe decision provided a cause of action to claimants in California, but the decision was prospectively overruled only nine years later. I contend that Royal Globe was misconceived because it was premised on questionable statutory interpretation, leading to an impossible task for lower courts to articulate the details of a private right of action in the language of a regulatory statute. However, the clearly articulated public policy that injured parties receive compensation from insurers suggests that the motivations of the Royal Globe court were basically sound.

I argue that courts should address the problem of "reverse insurance fraud" - in which a liability insurer stonewalls payment to a third-party claimant in bad faith, which is to say solely for the purpose of minimizing its payments on the claim and without any legal justification relating to questions of liability or the measure of damages - by focusing on the public policy in issue. My thesis is that courts should award tort damages to third-party claimants only in those cases where the public interest in prompt and fair payment to injured parties is undermined by the insurer's conduct.

In making this case, I analogize to the tort of wrongful discharge in violation of public policy in the employment law setting, where courts have held that employers should be liable in tort if they discharge employees for reasons that offend public policy, even if the employer owes no tort or contract duties regarding the duration of employment. I conclude that courts should similarly recognize the tort of bad faith settlement practices in violation of public policy, even if they continue to adhere to the baseline common law rule that a liability insurer owes no duties directly to third-party claimants.

I conclude the article with an appendix that includes a hypothetical judicial opinion that embraces my doctrinal argument. This article was solicited for inclusion in a Symposium published by the Nevada Law Journal on the topic, "My Favorite Insurance Law Case," and so I took the liberty of creating my own court opinion for purposes of the Symposium.

liability insurance, bad faith, unfair claims settlement practices

Abstract:
This paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman's philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman's philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.

Chaim Perelman, Legal education, Isocrates, Giambattista Vico, rhetorical knowledge

Abstract:
Gene Garver's recent book, "For the Sake of Argument: Practical Reasoning, Character and the Ethics of Belief" (U. Chicago Press, 2004), responds to the dilemma at the core of contemporary legal theory. Garver incisively describes why legal reasoning is viewed either as impotent or dangerous. Reason appears impotent in the legal context to the extent that we maintain its rigor by limiting its scope to dialectical demonstration; it appears dangerous to the extent that we free reason from having to provide definitive answers. Garver looks to Aristotle for a solution. To deal with the inadequacies of the accounts of practical reasoning that draw only from the Nicomachean Ethics, he anchors his account equally in the Rhetoric. He concludes that Aristotle's Rhetoric shows how reason can be contingent, emotional and interested without ceasing to be rational, and that, in concert with his insistence on the distinct integrity of practical reasoning, Aristotle provides the resources for recuperating legal reasoning.

There is much to commend in Garver's account, and I begin by describing his approach favorably. I then undertake a (friendly) critical analysis and suggest an account of rhetorical knowledge that supplements and expands Garver's insights. I suggest that a theory of rhetorical knowledge illuminates the hermeneutical character of the active audience in rhetorical exchanges. I conclude that Garver's Aristotelian approach to rhetoric preserves the integrity of the practice against the age-old challenge of the sophists, but he does not go far enough to investigate the social and institutional conditions for fostering the rhetorical-hermeneutical practices that generate rhetorical knowledge.

This review essay will appear in a small symposium on Garver's book that will be published by the Penn State Law Review in Spring 2006, with other contributions by Paul Kahn, Gene Garver, Eileen Scallen, and Richard Sherwin.

Eugene Garver, Aristotle, Practical Reasoning, Rhetoric, Hermeneutics, Gadamer, Legal Reasoning, Truth and Reconciliation Commission, Brown v. Board of Education

Abstract:
This paper provides a detailed account of Gadamer's philosophical hermeneutics and its relationship to contemporary problems in legal theory. I first demonstrate that Gadamer's approach charts a course between the inflated claims of critical legal studies and the subjectivism of the law and literature movement. I then interrogate the hermeneutical approach from the perspective of Habermas's critical theory. I conclude that Ricoeur's intervention in the Gadamer-Habermas debate helps significantly to draw out the critical elements of Gadamer's work. I conclude by developing new model of legal practice and theory grounded in the textuality of law.

Philosophical Hermeneutics, Critical Theory, Critical Legal Studies, Law and Literature, Hans-Georg Gadamer, Jurgen Habermas, Paul Ricoeur

Abstract:
This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious interpretation by comparing hermeneutical activities undertaken by faithful adherents to these two different textual traditions. In this first sense, it is to compare how these practices are the hermeneutics of the faithful. On the other hand, the phrase suggests an analysis of how interpreters in these two traditions remain faithful to the nature of their practice. In this second sense, it is to compare how hermeneutics can be faithfully accomplished. My thesis is that these two senses of "faithful hermeneutics" are connected. The fact that it is faithful adherents who engage in the interpretive practice in large part defines how they can, and should, remain faithful to the interpretive enterprise.

I anchor my argument in Hans-Georg Gadamer's critique of historicism, in which he references the practices of legal and religious hermeneutics. Gadamer's philosophical hermeneutics explains how faith is a prerequisite of understanding, even as understanding revitalizes and reshapes the faith one brings to a textual tradition. I then unfold the critical dimensions of faithful hermeneutics by comparing the work of Cardinal Joseph Ratzinger (later Pope Benedict XVI) and Gianni Vattimo on the Catholic tradition. I argue that these two thinkers display both the broad range and the non-methodological character of the critical insights of faithful hermeneutics.

I conclude by suggesting that the parallels between religious and legal hermeneutics are instructive, but that we remember that it would be a mistake to conflate these two instances of faithful hermeneutics in our secular age.

Hermeneutics, Critical Hermeneutics, Law, Religion, Hans-George Gadamer, Joseph Ratzinger, Pope Benedict XVI, Gianni Vattimo, Faith, Secularism

Abstract:
If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis is that President Obama might embody a means for faith and politics to co-exist in the post-secular age. I explore this paradoxical thesis in three parts. First, I analyze the concept of 'secularism' and recover an understanding of our 'secular' age that does not entail rejecting religious belief as a source of public values. Second, I discuss how Barack Obama is a secular politician in this sense, and argue that he may help to define a break from the traditional religious approach to politics exhibited by fundamentalist movements. Finally, I discuss the central question for a post-secular constitutional democracy: the role of religion in the public sphere. I conclude that the United States has the potential to be a secular state grounded in both religious belief and toleration, but this presents a continuing challenge for our polity rather than an accomplishment to be celebrated.

faith, politics, secular, secularism, post-secular, public reasons, Barack Obama, John Rawls, Jurgen Habermas, Joseph Ratzinger, Pope Benedict XVI

Abstract:
This paper criticizes Pierre Schlag's postmodern legal theory by arguing that his idealized critic exhibits the style of functioning that we commonly would attribute to a paranoid individual. The paper concludes that a dialogical model of postmodern thought inspired by Hans-Georg Gadamer's philosophical hermeneutics provides a more helpful basis for contemporary legal theory.

Postmodern legal theory, hermeneutics, dialogue, Pierre Schlag, Hans-Georg Gadamer

Abstract:
Legal scholars have only recently begun to address the radical challenges for law and legal theory that follow from Friedrich Nietzsche's pathbreaking work. This collection brings together articles from leading thinkers who consider how Nietzsche's philosophical and rhetorical interventions illuminate the failures of contemporary legal theory.

Part One considers the connections between law, political philosophy and Nietzsche's genealogy. Part Two provides a number of competing interpretations of Nietzsche's relevance for legal hermeneutics. Part Three includes articles that chart a course for legal critique that remains true to Nietzsche's radical character.

The work of prominent philosophers, including P. Christopher Smith, is joined with the work of leading legal theorists, including Philippe Nonet, and leading rhetoricians, including Marianne Constable, to provide complex and sophisticated overview of the manner in which Nietzsche problematizes law and legal theory.

Contents

Part I Political Philosophy, Genealogy, Law

What is Positive Law?, Philippe Nonet

Genealogy and Jurisprudence: Nietzsche, Nihilism and the Social Scientification of Law, Marianne Constable

The Relevance of Nietzsche to Democratic Theory: Micropolitics and the Affirmation of Difference, Nathan Widder

Nietzsche and the Nazis: The Impact of National Socialism on the Philosophy of Nietzsche, Charles M. Yablon

Part II Legal Hermeneutics

From Strife to Understanding: Pathological Argument in Nietzsche and Gadamer, P. Christopher Smith

Responding to Nietzsche: The Constructive Power of Destruktion, Francis J. Mootz III

Nietzsche's Gnosis of Law, Frederick M. Dolan

Friedrich Nietzsche, the Code of Manu and the Art of Legislation, Roger Berkowitz

African Nietzsche: Poetry, Philosophy and African Legal Thinking, Adam Gearey

It's a Positivist, It's a Pragmatist, It's a Codifier! Reflections on Nietzsche and Stendhal, Richard H. Weisberg

Nietzsche in Law's Cathedral: Beyond Reason and Postmodernism, John Linarelli

Part III Legal Critique

Law and Modernity, Peter Goodrich

We Fearless Ones: Nietzsche and Critical Legal Studies, Adam Gearey

Agonal Communities of Taste: Law and Community in Nietzsche's Philosophy of Transvaluation, H.W. Siemens

Rationalised Violence and Legal Colonialism: Nietzsche Contra Neitzsche, Joseph Pugliese

Specters of Nietzsche: Potential Futures for the Concept of the Political in Agamben and Derrida, Adam Thurschwell

Part IV Timely Reflections on the Scholarly Enterprise

We scholars, Friedrich Nietzsche (translated by Walter Kaufmann)

Nietzsche, Law, Legal Theory, Legal Philosophy, Rhetoric, Critical Legal Theory

Abstract:
Hans-Georg Gadamer's philosophical hermeneutics is especially relevant for law, which is grounded in the interpretation of authoritative texts from the past to resolve present-day disputes. In this collection of essays, leading scholars consider the importance of Gadamer's philosophy for ongoing disputes in legal theory. The work of prominent philosophers, including Fred Dallmayr, P. Christopher Smith and David Hoy, is joined with the work of leading legal theorists, such as William Eskridge, Lawrence Solum and Dennis Patterson, to provide an overview of the connections between law and Gadamer's hermeneutical philosophy. Part I considers the relevance of Gadamer's philosophy to longstanding disputes in legal theory such as the debate over originalism, the rule of law and proper modes of statutory and constitutional exegesis. Part II demonstrates Gadamer's significance for legal theory by comparing his approach to the work of Nietzsche, Habermas and Dworkin. The essays included in the volume are:

Francis J. Mootz III, "Introduction."

PART ONE: PHILOSOPHICAL HERMENEUTICS AND LEGAL THEORY

Hans-Georg Gadamer, "The Recovery of the Fundamental Hermeneutic Problem"
Fred Dallmayr, "Hermeneutics and the Rule of Law"
Stephen M. Feldman, "The Politics of Postmodern Jurisprudence"
Dennis Patterson, "Authorial Intent and Hermeneutics"
Lawrence B. Solum, "Originalism as Transformative Politics"
Georgia Warnke, "Law, Hermeneutics and Public Debate"
William Eskridge, "Gadamer/Statutory Interpretation"
Alexander Reilly, "Reading the Race Power: A Hermeneutic Analysis"
John T. Valauri, "Interpretation, Critique, and Adjudication: The Search for Constitutional Hermeneutics"

PART TWO: GADAMER IN CONVERSATION WITH OTHER LEADING HERMENEUTIC PHILOSOPHERS OF LAW AND LEGAL THEORY
George Wright, "On a General Theory of Interpretation: The Betti-Gadamer Dispute in Legal Hermeneutics"
P. Christopher Smith, "From Strife to Understanding: Pathological Argument in Nietzsche and Gadamer"
Francis J. Mootz III, "Responding to Nietzsche: The Constructive Power of Destruction"
Mark Burton, "Gadamer and Habermas: Determinacy, Indeterminacy and Rhetoric in a Pluralist World"
R. George Wright, "Traces of Violence: Gadamer, Habermas, and the Hate Speech Problem"
Kenneth Henley, "Protestant Hermeneutics and the Rule of Law: Gadamer and Dworkin"
David Couzens Hoy, "Legal Hermeneutics: Recent Debates"
Gregory Leyh, "Dworkin's Hermeneutics"

Hans-Georg Gadamer, Hermeneutics, Law, Legal Theory, Statutory Interpretation, Constitutional Interpretation, Friedrich Nietzsche, Jurgen Habermas, Ronald Dworkin

Abstract:
Rhetorical Knowledge in Legal Practice and Critical Legal Theory has just been published by the University of Alabama Press as part of its series, Rhetoric, Culture and Social Critique. My central themes are that rhetorical knowledge - however imperfectly pursued and attained - is a feature of social life; that rhetorical knowledge plays an important role in legal practice; and that legal critique is appropriately grounded by the normative injunction to maximize the generation of and reliance on rhetorical knowledge in the administration of justice by legal actors. If nothing else, I want to make clear that by recovering and cultivating the classic insights of Gadamer, Perelman, and Nietzsche we can gain substantial perspective on our current situation. By definition, the theory of rhetorical knowledge does not call for a brilliant theoretical reconstruction of legal practice that generates prescriptions; instead, it seeks to draw out resources that can help us understand legal practice and engage critically in this practice. Rhetorical knowledge may only be enacted rhetorically.

Chapter One provides an overview of Hans-Georg Gadamer's philosophical hermeneutics and Chaim Perelman's new rhetoric to develop the concept of rhetorical knowledge as an epistemic accomplishment, even if it cannot meet the rigors of empirical or logical-deductive knowledge. I close the chapter with an extensive discussion of the Grutter case as an example of the operation of rhetorical knowledge. The antinomies of fairness and equality render the debate over affirmative action interminable under logical strictures, but the debate continues, even if suboptimally, through legal discourse that can yield rhetorical knowledge. The reality of rhetorical knowledge in this setting is proved not because the participants come to learn the correct answer to the question (or worse yet, because some professor tells the participants what the correct answer is and must be), but because the participants continue to develop the public discussion of affirmative action along new and more productive lines of argumentation.

I reaffirm Aristotle's insight that we cannot demand more of any inquiry than it can provide: rhetorical knowledge is not a fall back position or second-best result; it is the very goal of legal inquiry. As base as the discussion of affirmative action has been in certain venues (televised talking heads, etc.), there is a rhetorical-hermeneutical component that can be understood and evaluated. Advocates seek the adherence of specific audiences (in the faculty meeting, for instance), of hypothetical constructions of specific yet dispersed audiences (in presidential politics, for instance), and of the hypothetical universal audience of all reasonable persons (in political-ethical theories, for instance) in a manner of communication that is derivative of conversational exchange (as explored in Gadamer's philosophy). The ongoing struggle to come to terms with affirmative action does not disprove the ability to have knowledge of this issue, but instead it reaffirms that such knowledge holds (uncertainly) only for discrete historical situations and is tested constantly and revised as these situations evolve. Rhetorical knowledge concerns the probable, rather than the logical-deductive. The cost of knowledge is the inability to secure complete, absolute knowledge; the cost of objective moral experience is to be situated in a practical context and denied the omniscient view from nowhere. But this also means that rhetorical knowledge about affirmative action is possible, and the matter need not be relegated solely to crude political compromise.

Chapter Two considers whether my approach is overly conventional and therefore complacent. How can we ensure that the dynamic development of rhetorical knowledge is moving in the correct direction in the absence of teleological guarantees? I defend both Gadamer and Perelman at length from the charge of complacency and conventionalism by confronting them with several interlocutors, but I then introduce a reading of Nietzsche that best brings out the implicit critical elements in their philosophies. I specifically refer to Gianni Vattimo's weak thought as a basis for finding a common ground in Gadamer and Nietzsche. It is because understanding involves a fusion of horizons that there is critical distance in the activity of understanding; there is no insular subject capable of positing truths. Differently phrased, it is the element of rhetorical elaboration in every interpretation that provides the basis for critical appraisals.

I explore the cases culminating in Lawrence v. Texas as examples of gaining critical insight through the fusion of prejudiced forestructures of understanding. I argue that the cases reveal the emergence of critical insight within the practice, but I purposefully do not write with the tone of inevitability, nor do I proceed from a self-satisfied assumption that the correct answers to the cases are obvious. It is by resisting the urge to declare definitively the truth of the matter, to demarcate methodologically permissible and impermissible legal interpretations, that critical hermeneutics can gain purchase in practice. I discuss the rhetorical settings and constructions of the cases in detail, using a reading of Nietszchean critique as a Verwindung (working through) rather than an Uberwindung (overcoming) to guide my analysis. In this respect, I argue that Lawrence is akin to Nietzsche's announcement that God is dead. It is a cultural intervention through description and interpretation rather than a legislative act.

Chapter Three extends the notion of a critical hermeneutics to legal practice, investigating the nature of legal practice in light of my theoretical construction of rhetorical knowledge and then exploring the multiple criminal prosecutions of Jack Kevorkian for assisted suicide (and, ultimately, murder) as an example of my thesis. We can develop a critical legal theory by drawing from the critical openings in legal practice; critical insight is a feature of the hermeneutical-rhetorical practices that yield rhetorical knowledge. Critical legal theory does not issue commands to practice from the sovereign heights of reason. Instead, critical legal theory is possible only as a dynamic product of the discursive field shaped by rhetorical knowledge, which means that it is both enabled and constrained by the finitude and historicity of our practical engagements. This recalls one of Gadamer's principal lessons: the critical inventiveness of conversational discourse emerges when we find ourselves brought up short in the encounter with another person (and certainly not some abstract, capitalized notion of the Other). The rhetorical constructions and re-constructions in the Kevorkian trials provide an example of the connection of the theory of rhetorical knowledge to the practice of law.

I close with the plea that we pay far greater attention to the operation of rhetorical knowledge. Rhetorical knowledge is offered as a guiding concept not as a grudging resignation that we must abandon false hopes of a rigorous philosophy of truth, nor as a celebration of boundless and playful irrationalism. Rather, rhetorical knowledge is a positive achievement that must be nurtured and protected by ongoing social practices. The hermeneutical-rhetorical account that I draw from Gadamer, Perelman and Nietzsche is a disciplined encounter with the lived experience of rhetorical knowledge, particularly as it is experienced in legal practice.

Rhetoric, Hermeneutics, Critical Legal Theory, Hans-Georg Gadamer, Chaim Perelman, Freidrich Nietzsche, Gianni Vattimo, Affirmative Action, Gay Rights, Jack Kevorkian, Assisted Suicide

Abstract:
The scope of "advertising injury" coverage in general liability policies has been shrinking in response to the proliferation of liabilities caused by the growth of the cyber-economy. In response to this shrinking coverage under general liability policies, insurers have been quick to develop new endorsements and specialized products to fill the gaps in coverage. The author argues that significant commercial risks relating to unfair competition claims have been eliminated from coverage under general liability policies, but that there also appears to be no corresponding development of specific endorsements or stand-alone products to deal with this gap in coverage. Specifically, claims against former employees who establish a competing enterprise are unlikely to be covered under the newest revisions of language in general liability policies. The author notes that these liabilities can be crippling to a new enterprise, and suggests that these new enterprises may be surprised to find that these commercial liabilites are not covered by their liability insurance package.

Liability insurance, advertising injury, unfair competition, intellectual property