Common Law Modernism: The Turn to Process in American Legal Thought, 1900 - 1970

Kunal Parker, LAPA Fellow; University of Miami Law School

Mon, 02/10/2020 - 4:30pm
300 Wallace Hall
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LAPA’s seminar format assumes that seminar participants have familiarized themselves with the paper in advance. The commentator opens the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception, giving everyone a chance to mingle and meet.

Abstract:  "This paper is part of a book-length study of how, under the impact of modernism, American legal, political, and economic thinkers increasingly turned away from thinking in terms of ends and towards thinking in terms of processes, means, methods, techniques, procedures, and protocols.  In the paper, I examine how this happened and what it looked like in the context of American legal thought between 1900 and 1970.  After showing how modernist legal thinkers attacked the common law tradition in the late nineteenth and early twentieth centuries, I show how American legal thinkers responded to that attack by representing law not as a body of substantive truths but as a way of doing things, a method, as It were, with legal procedure at its core.  What were the implications of this transformation for understandings of law?  With what consequences for the country’s common law tradition?  I examine such questions by looking at a range of contexts from debates over the administrative state to the structure of twentieth-century constitutional law and by examining the writings of many legal thinkers including (but not restricted to) Oliver Wendell Holmes, Jr., Roscoe Pound, Felix Frankfurter, James Landis, Lon Fuller, and Alexander Bickel."

Kunal Parker
2019-2020 LAPA Fellow
University of Miami Law School

Professor Parker is an American legal and intellectual historian as well as a historian of U.S. immigration and citizenship law. His books include Making Foreigners: Immigration and Citizenship Law in America, 1600 2000 (2015) and Common Law, History, and Democracy in America, 1790 1900: Legal Thought Before Modernism (2011). His scholarship has also examined such subjects as the interrelationship between American legal and historical thought and the history and theory of U.S. immigration and citizenship law. His teaching interests include Property Law, Constitutional Law, American Legal History, Race and Law, among other subjects.  Professor Parker received his A.B. and J.D. from Harvard University and his Ph.D. in History from Princeton University. After law school, he spent two years at a major New York law firm working on corporate and securities matters and providing pro bono representation to political asylum applicants. At LAPA, he will work on his current book project exploring the turn to ideas of process in mid-twentieth century American legal, political, and economic thought.