Law Commons^™

Between The Scylla Of Legal Formalism And The Charybdis Of Policy Conceptualism: Yale's Policy Science And International Law, Hengameh Saberi

Hengameh Saberi

An invisible but enduring legacy of the New Haven School, understood through this paper’s counter-narrative, is a new vista through which to caution against the pitfalls of policy reasoning and to demand its promises. International legal theory has a relatively clear sense about abuse of deduction when found in legal interpretation, but it has little to say about similar defects in policy reasoning. Equally undertheorized are our ideas about the very concept of policy and its place in international legal argumentation. Pursued policy objectives might be principled or flexible and their application flexible or principled. So a combination of principled …

Contract Law And Fundamental Legal Conceptions: An Application Of Hohfeldian Terminology To Contract Doctrine, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock

All Faculty Scholarship

In this contribution to a symposium on "Legal Realism and Legal Doctrine," I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be …

Nulidad Y Forma En El Proceso Civil - Perspectiva Histórica De La Función De La Nulidad Procesal En Su Camino Hacia El Modelo De La Finalidad, Renzo Cavani

Renzo Cavani

This essay intends to build an historical-legal analysis about the evolution of the nullity in civil procedure law, showing a progressive flexibilization of the legal formalism. The investigation covers Roman Law, Middle Age, the most important codifications of 19th Century, and finally arriving in the model adopted by the italian Code of Civil Procedure, which severely influenced the regulation of the nullity in the peruvian Code.

The Vanity Of Dogmatizing, Marc O. Degirolami

Faculty Publications

(Excerpt)

The year 1661 saw the publication of Joseph Glanvill’s The Vanity of Dogmatizing, a polemic advocating an intellectual break from Aristotle and the Schoolmen in favor of the sort of empiricism that eventually came to fruition in the philosophy of David Hume. Glanvill was deeply irritated by what he perceived as the encrusted academic orthodoxies of his age: “The Disease of our Intellectuals,” he railed, “is too great, not to be its own [evidence]: And they that feel it not, are not less sick, but stupidly so.” What was needed was a skeptical cast of …

Rediscovering Williston, Mark L. Movsesian

Washington and Lee Law Review

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston 's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the undertheorized quality of Williston 's …

There's Madness In The Method: A Commentary On Law, Statistics, And The Nature Of Legal Education, Steven B. Dow

Oklahoma Law Review

No abstract provided.

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

The Law Of Evidence And The Idea Of Progress, Michael S. Ariens

Faculty Articles

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter.

Consideration of these aspects of evidence law …