Research

Douglas Lind’s research interests fall into two general realms. First, he is working on a series of articles and a book examining the practice of adjudication. He has published a number of works in this area to date, ranging from essays critiquing the relevance of contemporary constitutional theory for the practice of adjudication (e.g., “Constitutional Adjudication as a Craft-Bound Excellence,” “Free Legal Decision and the Interpretive Re-Turn in Modern Legal Theory,” “A Matter of Utility: Dworkin on Morality, Integrity, and Making Law the Best It Can Be”) to a book and articles examining the roles of logic and intuition in judicial decisionmaking (e.g., “Logic and Legal Reasoning,” “Azdak, The Rascal Judge,” “Logic, Intuition, and the Positivist Legacy of H.L.A. Hart”). The approach he takes in these works is heavily influenced by two important strains in twentieth-century philosophic thought: the later philosophy of Ludwig Wittgenstein and American pragmatic philosophy. Recently, he completed another essay in this area, “The Significance of Practice in Early Pragmatic Philosophy.” A related piece, “Foundations of Legal Pragmatism,” and a work on Wittgenstein, “The Relevance of Wittgenstein for Legal Theory,” are nearing completion.

The general thesis Lind is developing through his essays on adjudication is that in deciding cases, judges traditionally have been restrained by the craft of judging. This profession-wide understanding of what is permissible legal argument draws on a set of craft-specific principles of neutrality which constrain freedom in judicial decision while allowing for the development of legal principle through inventive genius. In legal theory, however, the countervailing approach of “externality” holds prominence. Proponents of this jurisprudential approach purport to inform courts how to reach “right” outcomes by deducing constitutional meaning from abstract conceptions of rights and justice located outside and determined antecedent to the practice of judging. Against externality, Lind argues for “internality,” an approach influenced in part by his experience as a practicing lawyer, in part by his study of caselaw and legal history, and in part by American pragmatism and the later philosophy of Wittgenstein. Lind argues that legal judgment is so tightly intertwined with judicial practice that we cannot disentangle the results of adjudication from its practice. Hence, the justification of a judicial decision does not rest on reaching the “right” result as determined by some external standard, but on satisfying the conditions of adjudicative excellence that regulate the practice of adjudication from within.

The second area of Lind’s current research goes to what is sometimes called “cultural jurisprudence” or “legal pluralism.” He has several projects ongoing that explore legal developments in several cultural settings falling within three distinct political/geographic categories: (1) Tribal law and jurisprudence as it is developing among American Indian tribes in the United States; (2) The emerging legal systems in the Newly Independent States (NIS) of the former USSR; and (3) Customary law (i.e., the law of native black cultures) in Southern Africa. The common thread in these three project areas is the hybrid or pluralistic nature of law in each setting, where cultural traditions and customs are interwoven with Western notions of law imported by the dominant European colonizers (e.g., American Indian tribes – Anglo-American common law; NIS – Roman/Marxist USSR law; Southern Africa – Dutch Roman/English common law).

Specifically, Lind has a number of projects ongoing in each of the cultural jurisprudence project areas.

(1) U.S. Tribal Law: In 2003, Lind received a National Science Foundation (NSF) grant to create an internet-accessible digital library of laws and legal materials from American Indian tribes. This project is described more fully below.

(2) NIS: In collaboration with scholars from the former Soviet Union, Lind is working on a set of articles addressing issues in environmental law and philosophy covering both Soviet era environmental policy and post-Soviet NIS legal initiatives. The first article in this set, “Restoring the Fallen Blue Sky: Management Issues and Environmental Legislation for Lake Sevan, Armenia” (co-authored with Lusine Taslakyan) is forthcoming in the Fordham Environmental Law Journal. A second article, “The Red and the Green: The Tragedy of the Commons in the Soviet Union,” is in progress in collaboration with Evgeniy Perevodchikov.

(3) Southern Africa: Lind is collaborating with Thomas W. Bennett, Professor of Law, University of Cape Town, South Africa, on a project in comparative analysis of the hybrid or pluralistic legal systems that exist within the geographic United States and Southern Africa. They are assembling and editing an anthology of essays examining and comparing the historical development and contemporary status of Tribal Law within the United States and Customary Law in Southern Africa, especially South Africa.

Tribal Law Exchange Project: Back to Top

The Tribal Law Exchange is a multidisciplinary project at the University of Idaho, in cooperation with The National Judicial College, and The National Tribal Judicial Center. The project aims to enhance access to the legal materials of American Indian tribal justice systems through creation of a nationwide, web-accessible electronic database of tribal court opinions, tribal codes and constitutions, and related legal materials. The resultant product, the Tribal Law Exchange digital library, will be fully searchable and accessible on the worldwide web through its own web address and by hyperlink from web pages maintained by The National Tribal Judicial Center, The National Judicial College, and the University of Idaho. In addition to designing, creating, updating, and maintaining the project database, search engine, and web interface, the project participants are entering into contractual agreements with tribal courts and councils for permission to make their court decisions, codes, and constitutions available through the project digital library. Other legal materials, including selected federal and state court opinions addressing federal Indian law, treaties, and United States statutory and regulatory provisions affecting Indian rights and tribal governance round out the legal materials accessible through the Tribal Law Exchange. In addition, the project participants will provide training in the use of the database and in conducting legal research more generally to tribal court judges and members of tribal councils.

Project Team: Douglas Lind, Lead PI; James Foster, Professor, Department of Computer Science, University of Idaho, Co-PI; Delphine Keim-Campbell, Associate Professor, Department of Art, University of Idaho, Co-PI.

The project is sponsored by the National Science Foundation (NSF), Division of Computer-Communications Research, for the period from September 2003 to May 2007.

Progress/Results: The Tribal Law Exchange is in its initial creation stage. Database creation and website design are ongoing. Initial contracts with tribal governments and courts are being developed. The project team is also involved in conversations with a number of tribal and tribal-related organizations and educational institutions about partnerships and collaborative arrangements.

For more details please see Tribal Law Exchange or contact Douglas Lind by e-mail: dlind@uidaho.edu,

or phone: (208) 885-5761

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Last update: 16-Jun-2005