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Full-Text Articles in Law

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman Jan 2022

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

Faculty Scholarship at Penn Law

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties ...


Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman Jul 2021

Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman

Faculty Scholarship at Penn Law

A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism leveled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and ...


Rethinking Copyright And Personhood, Christopher S. Yoo Jan 2019

Rethinking Copyright And Personhood, Christopher S. Yoo

Faculty Scholarship at Penn Law

One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First ...


Judge Posner’S Simple Law, Mitchell N. Berman Jan 2015

Judge Posner’S Simple Law, Mitchell N. Berman

Faculty Scholarship at Penn Law

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range ...


Privacy Law: Positive Theory And Normative Practice, Anita L. Allen Jan 2013

Privacy Law: Positive Theory And Normative Practice, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the ...


Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick Jan 2006

Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

Faculty Scholarship at Penn Law

The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data ...


The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler Jan 2004

The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler

Faculty Scholarship at Penn Law

No abstract provided.


Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer Nov 2003

Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


What Do We Mean By "Judicial Independence"?, Stephen B. Burbank Jan 2003

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of ...


The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer Oct 2002

The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Method And Principle In Legal Theory, Stephen R. Perry Jan 2002

Method And Principle In Legal Theory, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.


The Roles Of Litigation, Stephen B. Burbank Jan 2002

The Roles Of Litigation, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Lines In The Sand: The Importance Of Borders In American Federalism, Seth F. Kreimer Jan 2002

Lines In The Sand: The Importance Of Borders In American Federalism, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The Inefficiency Of Mens Rea, Claire Oakes Finkelstein Jan 2000

The Inefficiency Of Mens Rea, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz Jan 2000

Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz

Faculty Scholarship at Penn Law

No abstract provided.


When The Rule Swallows The Exception, Claire Oakes Finkelstein Jan 2000

When The Rule Swallows The Exception, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Threats And Preemptive Practices, Claire Oakes Finkelstein Jan 1999

Threats And Preemptive Practices, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


The Architecture Of Judicial Independence, Stephen B. Burbank Jan 1999

The Architecture Of Judicial Independence, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz Jan 1999

Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz

Faculty Scholarship at Penn Law

No abstract provided.


Invidious Comparisons: Some Cautionary Remarks On The Process Of Constitutional Borrowing, Seth F. Kreimer Jan 1999

Invidious Comparisons: Some Cautionary Remarks On The Process Of Constitutional Borrowing, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer Jan 1999

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Crazy Reasons, Stephen J. Morse Jan 1999

Crazy Reasons, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.


Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch Jan 1997

Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch

Faculty Scholarship at Penn Law

In this Article, Professor Fisch assesses currrent retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues that retroactivity raises in both contexts. Professor Fisch's analysis, influenced by the legal process school, uses an equilibrium approach to connect retroactivity analysis to theories of legal change. Instead of focusing on the nature of the new legal ...


The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp Jan 1994

The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

America's political institutions are built on the principle that individual preferences are central to the formation of policy. The two most important institutions in our system, democracy and the market, make individual preference decisive in the formation of policy and the allocation of resources. American legal traditions have always reflected the centrality of preference in policy determination. In private law, the importance of preference is reflected mainly in the development and persistence of common-law rules, which are intended to facilitate private transactions over legal entitlements. In constitutional law, the centrality of preference is reflected in the high position we ...


Tort Law As A Comparative Institution, Claire Oakes Finkelstein Jan 1992

Tort Law As A Comparative Institution, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


The World In Our Courts, Stephen B. Burbank May 1991

The World In Our Courts, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer Jan 1989

Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The Doctrine Of Accommodation In The Jurisprudence Of The Religion Clauses, Sarah Barringer Gordon, Arlin M. Adams Jan 1988

The Doctrine Of Accommodation In The Jurisprudence Of The Religion Clauses, Sarah Barringer Gordon, Arlin M. Adams

Faculty Scholarship at Penn Law

No abstract provided.


The Costs Of Complexity, Stephen B. Burbank Apr 1987

The Costs Of Complexity, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.