Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Institution
Articles 1 - 7 of 7
Full-Text Articles in Jurisprudence
A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer
A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer
Faculty Scholarship
This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …
Settled Law, G. Alexander Nunn, Alan M. Trammell
Settled Law, G. Alexander Nunn, Alan M. Trammell
Faculty Scholarship
“Settled law” appears frequently in judicial opinions — sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.
We contend that settled law is actually a meaningful …
The Integrative Effects Of Global Legal Pluralism, Monica Hakimi
The Integrative Effects Of Global Legal Pluralism, Monica Hakimi
Faculty Scholarship
International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …
Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan
Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan
Faculty Scholarship
This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …
Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon
Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon
Faculty Scholarship
The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …
Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane
Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane
Faculty Scholarship
This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …
Philosophy Of Contract Law, Jody S. Kraus
Philosophy Of Contract Law, Jody S. Kraus
Faculty Scholarship
This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …