Cognitive science is transforming our understanding of the mind. New discoveries are changing how we comprehend not just language, but thought itself. Yet, surprisingly little of the new learning has penetrated discussions and analysis of the most important social institution affecting our lives-the law. Drawing on work in philosophy, psychology, anthropology, linguistics, and literary theory, Steven L. Winter has created nothing less than a tour de force of interdisciplinary analysis. A Clearing in the Forest rests on the simple notion that (...) the better we understand the workings of the mind, the better we will understand all its products-especially law. Legal studies today focus on analytic skills and grand normative theories. But, to understand how real-world, legal actors reason and decide, we need a different set of tools. Cognitive science provides those tools, opening a window on the imaginative, yet orderly mental processes that animate thinking and decisionmaking among lawyers, judges, and lay persons alike. Recent findings about how humans actually categorize and reason make it possible to explain legal reasoning in new, more cogent, more productive ways. A Clearing in the Forest is a compelling meditation on both how the law works and what it all means. In uncovering the irrepressibly imaginative, creative quality of human reason, Winter shows how what we are learning about the mind changes not only our understanding of law, but ultimately of ourselves. He charts a unique course to understanding the world we inhabit, showing us the way to the clearing in the forest. (shrink)

A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, (...) lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation. (shrink)

How can it be valuable to use vagueness in a normative text? The effect is to make a vague norm, and vagueness seems repugnant to the very idea of making a norm. It leaves conduct (to some extent) unregulated, when the very idea of making a norm is to regulate conduct. A vague norm leaves the persons for whom the norm is valid with no guide to their conduct in some cases - and the point of a norm is to (...) guide conduct. A vague norm in a system of norms does not control the officers or officials responsible for applying the norms or resolving disputes - and part of the value of a system of norms is to control the conduct of the persons to whom the system gives normative power. In this essay I will seek to resolve these puzzles, and to show that vagueness can be valuable to lawmakers (and valuable to them, because their use of it is valuable to the people to whom the law is addressed). Far from being repugnant to the idea of making a norm, vagueness is a central technique of normative texts: it is needed in order to pursue the purposes of formulating such texts. Not all norms are vague. But vagueness is of central importance to the very idea of guiding conduct by norms. (shrink)