Law Commons^™

Uncertainty In Law And Its Negation: Reflections, Gordon A. Christenson

Faculty Articles and Other Publications

For this issue of the Review, the editors invited me to reflection. In response, I wish to consider some aspects of a problem that has bothered me over the past quarter-century. This problem arises from radical subjectivism and its effect on the legal order. I believe that something is radically subjective in law when one norm is considered as valid as any other, or when one perception of facts is thought as valid as any other, for the reason that any objective principles for determining validity are either inadequate or considered meaningless tautologies, masking the subjective preference of those with …

Institutionalized Conflicts Between Law And Policy, Joseph P. Tomain

Faculty Articles and Other Publications

Law and policy do not mix well. The legal system is a significant force which contributes to the splintering of substantive policies. While this argument is made with specific reference to energy law and policy, it also has a general application to other classes of complex cases.

The "signs" that law and policy do not interact neatly manifest themselves in the form of conflicts of two different categories. In the first category are conflicts between the ends and purposes of law and policy. These are addressed in Section 11 of this article. In the second category are conflicts within the …

Contract Compensation In Nonmarket Transactions, Joseph P. Tomain

Faculty Articles and Other Publications

Professor Tomain assails the myths holding that contract law is either complete and unitary or hopelessly indeterminate. He contends that a distinction must be made between market situations, which require a more formal analysis, and nonmarket transactions to which a more particularized analysis should be applied. Making the market/nonmarket distinction permits flexibility of methodology and considerations of economics, politics, and morals as appropriate, without forcing the conclusion that contracts analysis is totally without structure. Professor Tomain advocates application of reflective doctrinal analysis which tests the sufficiency of a rule of law and reforms the rule if it is not supported …