Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law

This article explores the relevance of disagreement about valuesand about the functions and effects of law to debates concerningthe appropriate relationship between courts and legislatures,common law and statute. Recent developments in tort law providea context for the discussion. The argument is that in general,political processes of law-making should be preferred judicialprocesses.     

Sheldon Wolin and Democracy: Seeing Through Loss

This article offers an interpretation of Sheldon Wolin’s political thought and assesses its ongoing significance in the context of a Donald Trump presidency. Given the inegalitarian aspects of Trump’s efforts to “Make America Great Again,” there may now be a temptation to spurn any political narrative rooted in a sense of loss for American democracy’s Golden Age. However, while Sheldon Wolin is a thinker of the Left, the “archaic” vision of decentralized democracy that he advances in the 1980s also warns against the loss of local memories, cultures, and practices. This perspective validates conservative concerns regarding rapid economic and social shifts and yields distinctive insights into the failings of liberalism. The article traces how Wolin’s archaic vision of democracy first develops out of his postwar critique of liberalism and his engagement with student activism of the 1960s. It then examines the limitations of Wolin’s focus on loss and traces shifts in his thought over time. Ultimately, his work urges the Left to be attentive to local traditions and narratives of loss but also suggests that democracy should be understood as “polymorphous.”