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Full-Text Articles in Law

The Twin Aims Of Erie, Michael S. Green Sep 2019

The Twin Aims Of Erie, Michael S. Green

Michael S. Green

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. …


The Semantics And Pragmatics Of Legal Statements, Michael S. Green Sep 2019

The Semantics And Pragmatics Of Legal Statements, Michael S. Green

Michael S. Green

No abstract provided.


Vertical Power, Michael S. Green Sep 2019

Vertical Power, Michael S. Green

Michael S. Green

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), 1 argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state law …


The Return Of The Unprovided-For Case, Michael S. Green Sep 2019

The Return Of The Unprovided-For Case, Michael S. Green

Michael S. Green

No abstract provided.


The New Eliminativism, Michael S. Green Sep 2019

The New Eliminativism, Michael S. Green

Michael S. Green

No abstract provided.


Prediction Theories Of Law And The Internal Point Of View, Michael S. Green Sep 2019

Prediction Theories Of Law And The Internal Point Of View, Michael S. Green

Michael S. Green

No abstract provided.


On Hart's Category Mistake, Michael S. Green Sep 2019

On Hart's Category Mistake, Michael S. Green

Michael S. Green

This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s criticism of Hart, as it stands, is …


The Paradox Of Auxiliary Rights: The Privilege Against Self-Incrimination And The Right To Keep And Bear Arms, Michael S. Green Sep 2019

The Paradox Of Auxiliary Rights: The Privilege Against Self-Incrimination And The Right To Keep And Bear Arms, Michael S. Green

Michael S. Green

According to Locke's theory of the social contract, which was widely accepted by the Founders, political authority is limited by those natural moral rights that individuals reserve against the government. In this Article, I argue that Locke's theory generates paradoxical conclusions concerning the government's authority over civil disobedients, that is, people who resist the government because they believe it is violating reserved moral rights. If the government lacks the authority to compel the civil disobedient to abide by its laws, the result is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has …


The Real Legal Realism, Michael S. Green Sep 2019

The Real Legal Realism, Michael S. Green

Michael S. Green

No abstract provided.


Particularism, Telishment, And Three Strikes Laws, Michael S. Green Sep 2019

Particularism, Telishment, And Three Strikes Laws, Michael S. Green

Michael S. Green

No abstract provided.


International Law And Dworkin's Legal Monism, Michael S. Green Sep 2019

International Law And Dworkin's Legal Monism, Michael S. Green

Michael S. Green

No abstract provided.


Felix Cohen On Legislation, Michael S. Green Sep 2019

Felix Cohen On Legislation, Michael S. Green

Michael S. Green

Felix Cohen's and Walter Wheeler Cook's prediction theory of law was a fundamentally positivist theory, according to which the law of a jurisdiction is reducible to regularities of official behavior. Cohen used the prediction theory to argue for philosophical anarchism - that is, the view that the existence of law does not entail a duty, even a prima facie duty, of obedience. In particular, Cohen extended philosophical anarchism to adjudication. The fact that officials in a jurisdiction regularly behave in a certain way does not give a judge adjudicating a case a moral reason to do the same. In deciding …


Interauthority Relationships, Michael S. Green Sep 2019

Interauthority Relationships, Michael S. Green

Michael S. Green

No abstract provided.


Hohfeld And Property, Michael S. Green Sep 2019

Hohfeld And Property, Michael S. Green

Michael S. Green

No abstract provided.


Against The Conventionalist Turn In Legal Theory: Dickson On Hart On The Rule Of Recognition, Michael S. Green Sep 2019

Against The Conventionalist Turn In Legal Theory: Dickson On Hart On The Rule Of Recognition, Michael S. Green

Michael S. Green

No abstract provided.


Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green Sep 2019

Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green

Michael S. Green

In this review essay, Professor Michael Steven Green argues that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.


Erie's International Effect, Michael S. Green Sep 2019

Erie's International Effect, Michael S. Green

Michael S. Green

To what extent does the Erie doctrine apply in an international context? In his article When Erie Goes International, Professor Childress argues that a federal court choosing between state law and the law of a foreign nation should often (or perhaps always) ignore Klaxon Co. v. Stentor Electric Manufacturing Co. and use federal choice of law rules rather than the rules of the state where the federal court is located.

In this Essay, I have three points to make in response. The first is that Childress’s article, even if successful, leaves the bulk of the Erie doctrine unchanged in …


Erie, Swift, And Legal Positivism, Michael S. Green Sep 2019

Erie, Swift, And Legal Positivism, Michael S. Green

Michael S. Green

No abstract provided.


Copyrighting Facts, Michael S. Green Sep 2019

Copyrighting Facts, Michael S. Green

Michael S. Green

No abstract provided.