Saturday, January 24, 2009

Fenster on Thurman Arnold's Criminal Law Scholarship

Mark Fenster, University of Florida College of Law, has posted The Dramas of Criminal Law: Chapter [?] of The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory. Here is Professor Fenster’s abstract:
This essay is a chapter of a book-in-progress on the legal and cultural theory of the legal realist Thurman Arnold, who was prominent as a Yale law professor from 1932 until he joined the Justice Department as head of its antitrust division in 1938. Arnold's work focused on the symbolic role of law in governance, both as a means by which the state gains legitimacy and as a means by which those who oppose a political majority attempt to frame their opposition. As public law that defines and enforces substantive prohibitions, criminal law and procedure allowed Arnold to develop some of his most important ideas regarding the law, politics, and the state. And although it is doctrinally, procedurally, and administratively complex, criminal law and the criminal justice system are the areas of law to which the public and press pay the greatest attention. As a result, they served as an especially good means for Arnold to think through the relationships between law, the state, and popular sentiment. Writing in the midst of Prohibition, Arnold examined how the public sought to understand and affect criminal justice through political and moral debate. Arnold was not uninterested in the doctrinal and administrative complexity of criminal law and procedure-his first major law review article, written during his initial year-long visit to Yale, waded into the morass that was (and remains) of the law of criminal attempt. But he sought to understand why the law and the legal system appeared convoluted, how the public responded to the state's legal opacity, and how legal and political institutions sought to maintain their legitimacy while balancing the need for protecting individual rights, administering an overburdened criminal justice system, and enforcing-or appearing to enforce-the law.
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