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Restating Restitution: A Study In Contemporary Common Law Conceptualism, Chaim Saiman
Restating Restitution: A Study In Contemporary Common Law Conceptualism, Chaim Saiman
Chaim Saiman
The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under …
Reparations: A Remedies Law Perspective, Darren Hutchinson
Reparations: A Remedies Law Perspective, Darren Hutchinson
Darren L Hutchinson
This article provides a general overview of reparations discourse in the United States and offers suggestions concerning how advocates of reparations might frame their claims. The author discusses how remedies law might be a useful means of redress for litigants and examines some of the political and legal barriers to reparations in the United States. The barriers include the failure of opponents to treat remedies for gross human rights or civil rights deprivations as a public good, rather than as a series of private transactions that benefit or burden individuals. The author ultimately sets the litigation model aside as providing …
Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker
Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker
William S. Brewbaker III
The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's …
Thomas Aquinas And The Metaphysics Of Law, William Brewbaker
Thomas Aquinas And The Metaphysics Of Law, William Brewbaker
William S. Brewbaker III
Despite modernity's longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts - Thomas Aquinas' still-widely-read Treatise on Law - with a view toward tracing the influence of Thomas' metaphysical presuppositions. This article shows that Thomas' account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas' hierarchical view of reality exposes tensions between Thomas' "top-down" account of law and his sophisticated "bottom-up" observations. For example, Thomas grounds human law's authority …