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Articles 1 - 5 of 5

Full-Text Articles in Jurisprudence

Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Precedent And The Semblance Of Law, Stephen E. Sachs Jan 2018

Precedent And The Semblance Of Law, Stephen E. Sachs

Faculty Scholarship

Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got ...


Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie Jan 2015

Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie

Faculty Scholarship

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.


Suboptimal Social Science And Judicial Precedent, Ben Grunwald Jan 2013

Suboptimal Social Science And Judicial Precedent, Ben Grunwald

Faculty Scholarship

No abstract provided.


The Politics Of Statutory Interpretation, Margaret H. Lemos Jan 2013

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows ...