Diversity Reading List

Abstract: In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.

Summary: In this paper, Oshana argues that the U.S. Supreme Court's decision to affirm the Partial-Birth Abortion Act was mistaken. She claims that the Partial-Birth Abortion Act cannot withstand the test of strict scrutiny, that the Act fails to respect the privacy rights of individuals, and that there are compelling reasons (based in autonomy) to allow partial-birth abortion up until the point of fetal viability. As such, she claims, the Act violates the integrity of law.