tag:blogger.com,1999:blog-58120872007-03-09T15:59:32.745-08:00Legal Theory LexiconLawrence Solumnoreply@blogger.comBlogger51125tag:blogger.com,1999:blog-5812087.post-1163774178674565842007-02-09T06:35:00.000-08:002007-03-09T15:59:32.815-08:00New Location for Legal Theory Blog The Legal Theory Lexicon is part of Legal Theory Blog. The new location for Legal Theory Blog is: http://lsolum.typepad.com/legaltheory/Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1153655197362796842006-07-23T04:45:00.000-07:002006-07-23T04:46:37.680-07:00New Location for the Legal Theory Lexicon Archives The new location for the archives of the Legal Theory Lexicon is:http://lsolum.typepad.com/legal_theory_lexicon/Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1121269412161477352005-07-10T08:42:00.000-07:002005-07-13T13:56:56.223-07:00Legal Theory Lexicon 049: Distributive JusticeIntroduction Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1119833222397349852005-06-26T17:46:00.000-07:002005-06-26T17:49:24.416-07:00Legal Theory Lexicon 048: Libertarian Theories of LawIntroduction The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1119235755332194752005-06-19T19:47:00.000-07:002006-07-09T08:36:11.216-07:00Legal Theory Lexicon 047: The Counter-Majoritarian DifficultyIntroduction The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch. Whatever Bickel actually meant by the phrase, it has now taken on a life of Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1118629182518569322005-06-12T19:19:00.000-07:002006-07-02T04:35:12.186-07:00Legal Theory Lexicon 046: LegitimacyIntroduction Legitimacy. It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times, but what do they Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1118029152662275982005-06-05T20:38:00.000-07:002005-06-05T20:40:19.256-07:00Legal Theory Lexicon 045: The Attitudinal Model & the New Institutionalism Introduction The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1117436054948237972005-05-29T23:54:00.000-07:002005-05-29T23:54:14.956-07:00Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of LawIntroduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1116796538102685882005-05-22T14:10:00.000-07:002005-05-22T14:15:38.113-07:00Legal Theory Lexicon 043: Formalism and InstrumentalismIntroduction American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced. Many law students hunger for “black letter law,” for legal rules that can be applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1100476081780088952004-11-14T15:45:00.000-08:002006-06-11T05:23:01.573-07:00Legal Theory Lexicon 042: ConsentIntroduction Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1087756947848451392004-06-20T11:42:00.000-07:002006-05-28T15:15:58.583-07:00Legal Theory Lexicon 041: MetaethicsIntroduction Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1087333107145355992004-06-13T13:58:00.000-07:002005-05-08T11:00:46.836-07:00Legal Theory Lexicon 040: Functional Explanation in Legal TheoryIntroduction In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes claims about what those rules should be. This week's Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1086636739170760372004-06-06T23:50:00.000-07:002005-05-01T19:21:56.480-07:00Legal Theory Lexicon 039: Primary and Secondary RulesIntroduction Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1086012941516364212004-05-30T07:15:00.000-07:002004-05-31T07:16:01.146-07:00Legal Theory Lexicon 038: The Internal Point of ViewIntroduction How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1085589464611685832004-05-23T09:37:00.000-07:002004-05-26T09:38:53.823-07:00Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized AgreementsIntroduction As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1084718054522660482004-05-16T07:34:00.000-07:002004-05-16T11:39:08.546-07:00Legal Theory Lexicon 036: IndeterminacyIntroduction It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided? Before law school, most of us would answer "Yes, of course." And many law students start law school with the assumption that they willLawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1084718008587093502004-05-09T05:32:00.000-07:002006-04-16T05:01:28.853-07:00Legal Theory Lexicon 035: Strict Construction & Judicial ActivismIntroduction This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that are unimportant (or even meaningless), strict construction and judicial activism. Strict Construction Strict construction is short hand for Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1084125985755223882004-05-02T11:06:00.000-07:002004-05-09T11:09:42.090-07:00Legal Theory Lexicon 034: HohfeldIntroduction You need to know Hohfeld. Why? Because W.N. Hohfeld’s typology of rights from his book Fundamental Legal Conceptions is, well, fundamental. And useful! Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1084125931957604642004-04-25T11:05:00.000-07:002006-04-02T16:16:17.033-07:00Legal Theory Lexicon 033: HolismIntroduction Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin. As always, the Legal Theory Lexicon is aimed at lawLawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-108234024057005492004-04-18T19:04:00.000-07:002006-03-26T11:39:02.496-08:00Legal Theory Lexicon 032: Fit and JustificationIntroduction In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot's ofLawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1081703466249779632004-04-11T10:11:00.000-07:002006-03-19T07:06:52.513-08:00Legal Theory Lexicon 031: Virtue JurisprudenceIntroduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1081698325223155482004-04-04T08:45:00.000-07:002005-02-27T08:28:09.213-08:00Legal Theory Lexicon 030: TextualismIntroduction One of the most important topics in legal theory is “legal interpretation,” the theory of the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1080768453222013872004-03-28T13:27:00.000-08:002005-02-20T08:19:31.103-08:00Legal Theory Lexicon 029: Public and Private GoodsIntroduction One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1079902800084638482004-03-21T13:00:00.000-08:002005-02-14T13:23:44.253-08:00Legal Theory Lexicon 028: Concepts and ConceptionsIntroduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility Lawrence Solumnoreply@blogger.comtag:blogger.com,1999:blog-5812087.post-1079308439820403642004-03-14T15:53:00.000-08:002004-03-14T16:08:40.966-08:00Legal Theory Lexicon 027: PersonhoodIntroduction Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon Lawrence Solumnoreply@blogger.com