Law Commons^™

Expressive Theories Of Law: A Skeptical Overview, Matthew D. Adler

Faculty Scholarship

An "expressive theory of law" is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause.

This paper attempts to provide a …

Beyond Efficiency And Procedure: A Welfarist Theory Of Regulation, Matthew D. Adler

Faculty Scholarship

Normative scholarship about regulation has been dominated by two types of theories, which I term "Neoclassical" and "Proceduralist." A Neoclassical theory has the following features: it adopts a simple preference-based view of well-being, and it counts Kaldor-Hicks efficiency as one of the basic normative criteria relevant to the evaluation of regulatory programs. A Proceduralist theory is concerned, not solely with the quality of regulatory outcomes, but also with the governmental procedures that produce these outcomes: it gives intrinsic significance to the procedures that regulatory bodies follow. (One example of a Proceduralist theory is the civic republican theory of regulation advanced …

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …

Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn …

Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

No abstract provided.

Book Review: The Problematics Of Moral And Legal Theory, Matthew D. Adler

Faculty Scholarship

Reviewing, Richard A. Posner, The Problematics of Moral and Legal Theory (1999)