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Towards A Jurisprudence Of Hybridity, Paul Schiff Berman
Towards A Jurisprudence Of Hybridity, Paul Schiff Berman
GW Law Faculty Publications & Other Works
Debates about non-state normative communities often devolve into clashes between two polarized positions. On the one hand, we see the desire to eradicate difference through forced obeisance to a single overarching state norm. On the other, we see claims of complete autonomy for non-state lawmaking, as if such non-state communities could plausibly exist in isolation from the communities that both surround and intersect them.
Neither of these positions takes seriously the importance of engagement and dialogue across difference. Navigating difference doesn’t require either assimilation or separation; it requires negotiation. Legal pluralists have long charted this process of negotiation, noting, for …
Traditional Versus Economic Analysis: Evidence From Cardozo And Posner Torts Opinions, Lawrence A. Cunningham
Traditional Versus Economic Analysis: Evidence From Cardozo And Posner Torts Opinions, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. It evaluates prominent opinions of two judicial exemplars of the contending conceptions, the traditionalist Benjamin Cardozo and the economist Richard Posner, in torts, the field where economic analysis has greatest impact. Comparative critique of their opinions appearing in current torts casebooks, where they are the most ubiquitous judges, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law.