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Books > Law > Jurisprudence & general issues > Legal profession
What is the value of fictions, metaphors, figures and scenarios in
adjudication? This book develops three models to help answer that
question: inquiry, artefacts and imagination. Legal language, it is
argued, contains artefacts - forms that signal their own artifice
and call upon us to do things with them. To imagine, in turn, is to
enter a distinctive epistemic frame where we temporarily suspend
certain epistemic norms and commitments and participate actively
along a spectrum of affective, sensory and kinesic involvement. The
book argues that artefacts and related processes of imagination are
valuable insofar as they enable inquiry in adjudication, ie the
social (interactive and collective) process of making insight into
what values, vulnerabilities and interests might be at stake in a
case and in similar cases in the future. Artefacts of Legal Inquiry
is structured in two parts, with the first offering an account of
the three models of inquiry, artefacts and imagination, and the
second examining four case studies (fictions, metaphors, figures
and scenarios). Drawing on a broad range of theoretical traditions
- including philosophy of imagination and emotion, the theory and
history of rhetoric, and the cognitive humanities - this book
offers an interdisciplinary defence of the importance of
artefactual language and imagination in adjudication.
Judges and legal scholars talk past one another, if they have any
conversation at all. Academics couch their criticisms of judicial
decisions in theoretical terms, which leads many judges-at the risk
of intellectual stagnation-to dismiss most academic discourse as
opaque and divorced from reality. In Divergent Paths, Richard
Posner turns his attention to this widening gap within the legal
profession, reflecting on its causes and consequences and asking
what can be done to close or at least narrow it. The shortcomings
of academic legal analysis are real, but they cannot disguise the
fact that the modern judiciary has several serious deficiencies
that academic research and teaching could help to solve or
alleviate. In U.S. federal courts, which is the focus of Posner's
analysis of the judicial path, judges confront ever more difficult
cases, many involving complex and arcane scientific and
technological distinctions, yet continue to be wedded to legal
traditions sometimes centuries old. Posner asks how legal education
can be made less theory-driven and more compatible with the present
and future demands of judging and lawyering. Law schools, he points
out, have great potential to promote much-needed improvements in
the judiciary, but doing so will require significant changes in
curriculum, hiring policy, and methods of educating future judges.
If law schools start to focus more on practical problems facing the
American legal system rather than on debating its theoretical
failures, the gulf separating the academy and the judiciary will
narrow.
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