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Alani Golanski

Jurisprudence

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Full-Text Articles in Law

Nonmoral Theoretical Disagreement In Law, Alani Golanski Mar 2016

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Alani Golanski

I agree with Dworkin that there is widespread theoretical disagreement in law. I hope to show, however, why this disagreement should not be seen as moral in nature. Legal philosophers have nearly always viewed the existence of theoretical disagreement in law as the indicium of moral dispute. If that is so, and if such disagreement is widespread, then this would be compelling evidence of law’s incorporation of moral standards. Thus, theoretical disagreement has posed a powerful challenge to the "positivist" approach, which claims that, for the most part, legality can be determined without resort to moral criteria. This paper draws …

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Legal Theory From The Regulative Point Of View, Alani Golanski Dec 2012

Legal Theory From The Regulative Point Of View, Alani Golanski

Alani Golanski

I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas.  This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas.  This posted paper revises the originally published Cumberland Law Review version.

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A New Look At Duty In Tort Law: Rehabilitating Foreseeability, And Related Themes, Alani Golanski Mar 2012

A New Look At Duty In Tort Law: Rehabilitating Foreseeability, And Related Themes, Alani Golanski

Alani Golanski

This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the …

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