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Full-Text Articles in Law
Judicial Priorities, Bert I. Huang, Tejas N. Narechania
Judicial Priorities, Bert I. Huang, Tejas N. Narechania
Faculty Scholarship
In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state's appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high court explained that the amendment's purpose was to reduce the "avalanche of opinions emanating from [the] Appellate Court," which was causing legal research to become "unnecessarily burdensome, difficult and costly." This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method we introduce …
The Constraint Of Legal Doctrine, Shyamkrishna Balganesh
The Constraint Of Legal Doctrine, Shyamkrishna Balganesh
Faculty Scholarship
As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is “more malleable, less determinate, and less causal of judicial outcomes” than is traditionally presumed. Judges …
Equity's Unstated Domain: The Role Of Equity In Shaping Copyright Law, Shyamkrishna Balganesh, Gideon Parchomovsky
Equity's Unstated Domain: The Role Of Equity In Shaping Copyright Law, Shyamkrishna Balganesh, Gideon Parchomovsky
Faculty Scholarship
As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth century. At a purely conceptual level, some trace the term back to Aristotle’s notion of epieikeia, or the process of infusing the law with sufficient flexibility to avoid injustice. Lastly, at a largely practical level, a few treat equity as synonymous with a set of remedies that courts can authorize, all of which …
Structure And Value In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky
Structure And Value In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky
Faculty Scholarship
Common law concepts have fallen into disrepute among legal theorists. The rise of Legal Realism in the early twentieth century marked a turning point in legal thought and analysis. One of the defining characteristics of the movement was complete disregard, not to say contempt, towards legal conceptualism. The founding fathers of the movement viewed the core concepts of the common law as devoid of any independent meaning or functional significance. They considered the common law’s conceptual edifice indeterminate and manipulable so as to render it altogether contingent on the working of the system. Walking along the same path, efficiency-minded scholars …