Law Commons^™

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …

Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …

Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels

Faculty Scholarship

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.

Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.

This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My …

James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner

Faculty Scholarship

This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in …

Originalism Without Text, Stephen E. Sachs

Faculty Scholarship

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.