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Full-Text Articles in Law
Fractured Markets And Legal Institutions, Herbert J. Hovenkamp
Fractured Markets And Legal Institutions, Herbert J. Hovenkamp
All Faculty Scholarship
This article considers how we can improve legal outcomes of conflicts that occur in very small arenas. The conflicts can be of many kinds, including a nuisance dispute between neighbors, an impending collision between two moving vehicles, a joint decision between spouses about whether or on what terms to continue their marriage, or a disagreement between managers and shareholders within a firm.
The prevailing literature typically refers to these small environments as “markets.” Thinking of them as markets, however, averts our attention from larger environments that should be considered but that often do not function well as private markets. For …
Structure And Value In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky
Structure And Value In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky
University of Pennsylvania Law Review
Legal concepts are seen today as archaic relics of the past, and as representing a largely dispensable feature of the common law. This Article challenges the widely accepted view of legal concepts as remnants of formalist thinking, and argues that legal concepts play a crucial role in ensuring the vitality and subsistence of the common law over time, place, and context. Legal concepts embody what we term “a duality of meaning,” which effects a separation between a concept’s analytical and normative meanings. The analytical (or structural) meaning of a concept is, at its core, well-defined and remains stable over time, …