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Full-Text Articles in Law
Rediscovering Williston, Mark L. Movsesian
Rediscovering Williston, Mark L. Movsesian
Faculty Publications
This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the under-theorized quality of Williston's scholarship—to contemporary …
Palazzolo, Lucas, And Penn Central: The Need For Pragmatism, Symbolism, And Ad Hoc Balancing, F. Patrick Hubbard
Palazzolo, Lucas, And Penn Central: The Need For Pragmatism, Symbolism, And Ad Hoc Balancing, F. Patrick Hubbard
Faculty Publications
The constitutional right to compensation for a governmental taking of property is relatively easy to apply in situations involving a straightforward, physical appropriation of land for a public use like a highway. However, difficulties arise when governmental action consists only of rules that limit an owner's use of land. In most situations, these limits are viewed as burdens an individual is properly subject to as a citizen and land owner. From this perspective, the exercise of the "police power" of the government, which has traditionally been used to prohibit public and private harms, does not usually involve a taking of …
Defensor Fidei: The Travails Of A Post-Realist Formalism, Lyrissa Lidsky
Defensor Fidei: The Travails Of A Post-Realist Formalism, Lyrissa Lidsky
Faculty Publications
This Article probes the philosophical and psychological attractions of formalism and suggests that its promise of stability and order may be essential to the effective functioning of the legal system, even if the promise can never be realized.