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Positivism, Emergent And Triumphant, Vincent A. Wellman
Positivism, Emergent And Triumphant, Vincent A. Wellman
Michigan Law Review
Positivism is one of those words that triggers passionate and often contradictory responses. For some, positivism is a pejorative. Lon Fuller, perhaps more than anyone, charged that positivism was confused about the nature of law, blind to law's inherent morality, and morally corrupting to boot. He even suggested, in different ways, that positivism helped promote the rise of fascism in Europe. Others, in contrast, have treated positivism as a modest and undeniable truth about law. Law, they argued, is morally fallible, and accordingly, the existence and validity of law is a matter of social fact rather than moral necessity. H.L.A. …
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
Michigan Law Review
Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …