J don't intend to provide any background information on Black? stone, except to say that he published his treatise in England be? tween 1765 and 1769, and that aside from Chancellor Kent's Commentaries on the Law of the United States, published between 1820 and 1825, Blackstone's work is the only systematic attempt that has been made to present a theory of the whole common law system. Duncan Kennedy.1

(2003). English Private Law, Outside-In. Oxford University Commonwealth Law Journal: Vol. 3, No. 2, pp. 249-264.

The Structure of Blackstone's Commentaries

English Private Law, Outside-In

The confusion surrounding the current debates on the nature and scope of judicial review is compounded by the failure of the contending parties to relate their positions to a defensible general theory of law and politics. But these debates may also aid in reconstructing such a theory. After a brief survey of four different stands with regard to judicial review, this article concludes by suggesting how the prevailing interpretations of law and politics need to be revised, if judicial review is to be to the Constitution what the practice of government of law is to its theory.

Law, Politics, and Judicial Review

Living on: Borderlines — Law/history

In the last decade an explosion of Supreme Court case law has struggled with the question of what makes a regulatory restriction on private property a taking for which just compensation is required by the Constitution.1 Judges, policymakers, and legal scholars have offered various modern approaches to answer this question; but, notwithstanding their efforts, or perhaps because of their meddlings, the problem of regulatory takings has only become more confused and complex than ever. As one commentator of the Court’s recent takings cases has aptly concluded: “[I]t is difficult to imagine a body of case law in greater doctrinal and conceptual disarray” (Peterson 1989, p. 1304).

The Dilemmas of Property and Sovereignty in the Postmodern Era: New Solutions for the Regulatory Takings Problem

Ronald Dworkin and Duncan Kennedy represent arguably two opposing poles in legal theory. This paper offers a novel frame for reading their respective legal theories which reconceptualizes the traditional way in which they were opposed, and new ways to compare them, to understand their commonalities and their differences.While Dworkin is taken to be a champion of a theory of rights, he is also associated with a certain theory of interpretation which holds that even in hard cases judges have limited discretion and a right answer to every legal question we might reasonably encounter. Kennedy, in contrast, seems to disagree with Dworkin in every conceivable respect such as the nature of law and legal reasoning, the role of right, the relation of law to its outsides (politics/ideology), thus questioning the objectivity and neutrality of legal reasoning, and he seems to be advocating what could be termed as a “radical indeterminacy” thesis.The paper attempts reading Dworkin and Kennedy alongside each other, rather than in opposition, and so it deploys two interrelated strategies to establish such frame. One is concerned softening what appear to be rigid opposition through scrutinizing their writings, whereas the other takes stock of the common themes, presuppositions, images of law, and sensibilities that both share either explicitly or implicitly. This double strategy reveals the arguments that are attributed to them and which they themselves deny they are making. To that end, the paper unveils an unacknowledged shift toward phenomenology in legal theory that took place in the last few decades.

Ronald Dworkin and Duncan Kennedy: Two Views of Interpretation

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The Structure of Blackstone's Commentaries

Citations

English Private Law, Outside-In

Law, Politics, and Judicial Review

Living on: Borderlines — Law/history

The Dilemmas of Property and Sovereignty in the Postmodern Era: New Solutions for the Regulatory Takings Problem

Ronald Dworkin and Duncan Kennedy: Two Views of Interpretation

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