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Full-Text Articles in Law
The Spatial: A Forgotten Dimension Of Property, Paul Babie
The Spatial: A Forgotten Dimension Of Property, Paul Babie
San Diego Law Review
This Article explores, such a spatial turn in the case of property theory requires further elaboration and exploration. First, analytically, the spatial turn can be used to reassemble what we already know about property to recognize expressly the spatial dimension of property, thus revealing what has always been there but which has rarely been named and discussed: property emerges from, exists in, and is replicated through space. Second, and equally important, normatively, revealing the spatial dimension adds context to the social understanding of property and thereby allows us to see and encourage further exploration of the role of property as …
Socioeconomic Rights And Theories Of Justice, Jeremy Waldron
Socioeconomic Rights And Theories Of Justice, Jeremy Waldron
San Diego Law Review
This Article considers the relation between theories of justice - such as John Rawls's theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly …
Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine
Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine
San Diego International Law Journal
This Essay aims to examine some of the common elements of law and economics and the Brisker method that have contributed to their success as intellectual movements. Toward that end, the Essay compares the founding principles of these movements, exploring similarities in their essential characteristics. Part I presents and analyzes representative examples of the conceptual approach underlying each of these methods. Drawing on these and other examples of each method, Part II observes that the success of the methods stems in part from their common reliance on historical antecedents as well as their emphasis on conceptual frameworks broadly applicable within …
Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni
Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni
San Diego International Law Journal
Many today claim that, after WWII, the fall of the Berlin wall and, now, September 11, 2001, the changing nature of nation states, democracy, and the law can no longer be sensibly ignored. How can comparative law contribute to such an important debate? In what follows, it is argued that one way to contribute to the debate over the changing nature of nation states, democracy, and the law would be to engage in poetic comparisons of law's many domains. What, then, are poetic comparisons of law, and what do they invite us to do? Learning from Martin Heidegger's life-long advocacy …
Introduction, Emily Sherwin
Introduction, Emily Sherwin
San Diego Law Review
Recent debate about theory in legal scholarship' has raised more questions about theory and law than it has answered. For example, just what is meant by "theory" in the context of law? Is there a form of theory that is uniquely "legal" theory, or is legal theory merely moral theory applied to law? If there is such a thing as legal theory, does the body of positive law, and particularly the decisions of judges, inform legal theory, or does theory inform law? What, if any, are the justifications for constructing theories of law?
Theories Of Areas Of Law, Michael Moore
Theories Of Areas Of Law, Michael Moore
San Diego Law Review
The topic of this symposium is "theories and the law." Since this is such an enormously broad topic, the first thing to do is to narrow it a bit. As I shall discuss it, the topic is not on the central topic of jurisprudence, which is the theory of law. My topic is theories within our law, rather than theories about the nature of law in general. Often we call such theorizing internal to the law we have, "internal jurisprudence," to be contrasted with an "external jurisprudence" that is about law as such. Within internal jurisprudence, there is still considerable …
Theory's A What Comes Natcherly, Larry Alexander
Theory's A What Comes Natcherly, Larry Alexander
San Diego Law Review
So what kind of theorizing do we do in law? First, we do empirical, predictive theorizing. We form hypotheses about how the world will be affected by various rules of law, because of their content and form, and by the design of our legal institutions. These hypotheses can be confirmed or falsified. We also form hypotheses about how particular judges will decide future cases, or how legislatures and agencies will react to various proposals. When we do legal history, we reason backwards from effects and form hypotheses about their causes. The second type of theorizing we do is normative. In …
Two Aspects Of Law And Theory, Ronald J. Allen
Two Aspects Of Law And Theory, Ronald J. Allen
San Diego Law Review
In the last quarter of the twentieth century, there was much ado about law and theory, or the relationship between law and theory, or legal theory, phrases that I take to be synonymous, two aspects of which I want to discuss briefly today. With an introductory sentence like that, the normal expectation would be that the next sentence would somehow work in the phrase "about nothing," and, not wanting to be unpredictable, thus casting doubt on somebody's behavioral theory, I will fulfill this expectation by saying that a fair amount of the ado about legal theory was indeed about nothing. …
Theory Minimalism, Stanley Fish
Theory Minimalism, Stanley Fish
San Diego Law Review
We must begin with a sense of what theory is, and I shall derive mine from a question Herbert Wechsler often put to his students. "Ask yourself," he would say, "'Would I reach the same result if the substantive interests were otherwise?"" The challenge of the question is to the student who has determined where the right lies in a disputed matter, and who now must demonstrate that, even if every circumstantial particular of the case were varied-if the plaintiff were a woman instead of a man, if the object of hate speech was a descendant of someone who came …