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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, …