Legal Theory Lexicon
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Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reasons. But when it…
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Introduction This installment of the Legal Theory Lexicon is a very brief introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but…
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Introduction One of the most useful tools in analyzing legal rules and the policy problems to which they apply is game theory. The basic idea of game theory is simple. Many human interactions can be modeled as games. To use game theory, we build a simple model of a real-world situation as a game. Thus,…
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Introduction This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to “the veil of ignorance”—an idea from political philosophy that has had an important influence on legal theory. The veil of ignorance is a thought experiment—the philosophical equivalent of a hypothetical. From the Ex Ante Perspective to the…
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Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all…
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Introduction Today’s Legal Theory Lexicon is about the “reasonable person.” The notion of a “reasonable person” usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the “reasonable person” is used to define the standard of care that triggers liability for unintentional harms. But what makes…
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Introduction The hypothetical (or “hypo”) is so familiar to anyone who has received a legal education in the United States that you might ask, “Can there possibly be anything of theoretical interest in the hypothetical?” And in the same vein, “We all know what hypos are.” The purpose of this post is to reflect on…
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Introduction This week the Legal Theory Lexicon investigates the Coase theorem. Ronald Coase was a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper: Ronald H. Coase, The…
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Introduction If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea: Of course, this…
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Introduction Law students frequently encounter the idea of false positives and false negatives when discussing Blackstone’s ratio: “better that ten guilty persons escape than that one innocent suffer.” The conviction of an innocent person is what is called a “false positive,” whereas a guilty person escaping punishment is a “false negative.” This Lexicon entry analyzes…