Legal Theory Lexicon
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Introduction Early in the first year of law school, students are likely to realize that facts are crucially important. But the law school curriculum is designed so as to make the process of legal factfinding almost invisible. The traditional first year courses focus on appellate cases and legal norms. The facts are givens. The standards
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Introduction Law students quickly learn that many legal texts are vague or open-textured. Words like “reasonable” and phrases like “freedom of speech” may not provide bright-line rules for their application. This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation
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by Lawrence B. Solum Introduction The first year curriculum in the United States focuses on domestic private law (property, torts, contracts), civil procedure, and constitutional law, with the possibility of a course on legislation and regulation or an elective outside the core common law subjects. International law is rarely studied in the first year. So,
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Introduction One of the most important tasks performed by lawyers and judges is the “interpretation” of legal texts, including constitutions, statutes, regulations, rules, contracts, and the list goes on. One aspect of communication involves the linguistic meaning the words and phrases that make up the text: this aspect of meaning is sometimes called “semantics.” The
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Introduction Sometimes a case is referred to as “canonical.” It is one of the cases that is clearly correct. In the context of American constitutional law, Brown v. Board is frequently cited as a canonical case. Other times, the opposite point is made: a case is call “anti-canonical.” It is clearly wrong. An example is
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Introduction Law students quickly learn that the interpretation of legal texts is an important component of legal practice. Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision. How do we determine the meaning of legal texts? One possibility is that judges could consult their linguistic intuitions. Another
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Introduction Normative legal theory is concerned with reasons for legal actions, including reasons for adopting legislation or for judge-made law. This very brief entry in the Legal Theory Lexicon attempts to sort out some the terminology by discussing the terms “normativity,” “morality,” and “ethics” in their various forms and meanings. As always, the Lexicon is aimed at
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Introduction In many ways, the “Legal Process” approach to positive and normative legal theory dominated American legal thought in the second half of the twentieth century. There was more than one version of “legal process” theorizing, but this entry in the Legal Theory Lexicon will focus on the idea of “reasoned elaboration” that is associated with
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Introduction In The Path of the Law, Supreme Court Justice Oliver Wendell Holmes, Jr., wrote, If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his
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Introduction Many law students learn about “narrative” at some point in law school. Of course, narratives (or more simply “stories”) are all over the law. Individual cases include narratives in their recitation of the facts and procedural history. Sequences of cases can be studied as narratives, with events both internal and external to the law