Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Autonomy (1)
- Commercial speech (1)
- Consequentialism (1)
- Constitutional law (1)
- Constitutional theory (1)
-
- Crime torts (1)
- Criminal law (1)
- Dissent (1)
- Economic incentives (1)
- Error theory (1)
- First Amendment (1)
- Free speech (1)
- H.L.A. Hart (1)
- Hart (1)
- Interpretive methods (1)
- Jurisprudence (1)
- Law as practice (1)
- Legal culture (1)
- Liability insurance (1)
- Loss spreading (1)
- Moral reasoning (1)
- Morals (1)
- Positivism (1)
- Price setting (1)
- Rule of Recognition (1)
- Tort (1)
- Torts (1)
Articles 1 - 4 of 4
Full-Text Articles in Jurisprudence
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
All Faculty Scholarship
This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear …
Liability Insurance At The Tort-Crime Boundary, Tom Baker
Liability Insurance At The Tort-Crime Boundary, Tom Baker
All Faculty Scholarship
This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance …
Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman
Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman
All Faculty Scholarship
This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the "hard cases" …
The First Amendment And Commercial Speech, C. Edwin Baker
The First Amendment And Commercial Speech, C. Edwin Baker
All Faculty Scholarship
After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve …