The Repetitions of History
This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal moments in which American law reaches for science in an attempt to solve its problems and is disappointed when the solution fails to live up to its promise. The chapter begins by describing various attempts to reconceptualise law as a science in the pre-Civil War period and the failure of those attempts in the wake of the Civil War. It then describes reinvigoration of the “law as science” idea in the 1870s as Christopher Langdell popularizes the notion, leaving an enduring mark on American legal education. The chapter turns to individual doctrinal moments in which American law has reached for science to solve intractable problems and is subsequently disappointed. The examples explored include criminal law doctrines related to finding a defendant not guilty by reason of insanity, civil law doctrines related to the best interests of the child in custody cases, the Supreme Court's desegregation decision in Brown v. Board of Education, the Learned Hand test for negligence liability in tort law, and rate setting in public utility regulation.
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