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Full-Text Articles in Rule of Law
The Rule Of Law As A Law Of Standards, Jamal Greene
The Rule Of Law As A Law Of Standards, Jamal Greene
Faculty Scholarship
Justice Antonin Scalia titled his 1989 Oliver Wendell Holmes Lecture at Harvard Law School The Rule of Law as a Law of Rules. The lecture posed the sort of dichotomy that has become a familiar feature of Justice Scalia's jurisprudence and of his general approach to judging. On one hand are judges who recognize that the only legitimate means by which they may adjudicate cases in a democracy is to seek to do so through rules of general application. On the other hand are those judges who generally prefer to adopt an all-things considered balancing approach to adjudication. This latter …
Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen
Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen
Faculty Scholarship
The central article of faith of the traditional understanding of the Rule of Law is that precedent uniquely determines the outcome of legal cases. Skepticism about that faith, however, is widespread. Critical Legal Scholars, as well as their intellectual ancestors, the Legal Realists, have frequently attacked the legitimacy of the received model and the formalist view of the relationship between the law and its individual applications that underlies the model. The common aim of these attacks is to demonstrate that the law is indeterminate in outcome and that the supposed constraints of the Rule of Law on judges are fictions.