Legal Theory Lexicon
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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…
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Introduction The idea of “intersectionality” has played an important role in antidiscrimination law and in critical approaches to legal theory. But what is “intersectionality”? Here is a hypothetical that illustrates the concept. Imagine a plaintiff who sues her employer for discrimination. The employer has hired Black men for factory jobs and white women for office…
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Introduction Law students are almost certain to encounter the phrase “history and tradition” in constitutional law. The phrase appears in cases about guns, abortion, and prayer at public high school football games. But what does “history and tradition” actually mean? Is history and tradition simply another name for originalism? Or is the turn to history…
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Introduction The idea of “structural injustice” has become a fixture of contemporary political discourse. Politicians, journalists, and activists invoke structural racism, structural poverty, and structural inequality to describe social problems that seem to persist no matter who holds office or whether any particular individuals intend to discriminate. The core intuition is that serious injustice can…
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Introduction Law students almost always encounter criminal law in their first year, frequently in the first semester. The traditional course in criminal law introduces students to the way the law approaches deep moral questions. What justifies the state’s deliberate imposition of suffering on offenders? What conduct should be criminalized? The criminal law does not (and…
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Introduction Law students at different law schools encounter the course in constitutional law at different points in their legal education. At some law schools constitutional law is a second-semester first-year course, but conlaw is sometimes a first-semester 1L course and at a significant number of law schools, the course is an upper-division elective or requirement.…
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Many first-year law students experience civil procedure as a bewildering mass of complex and technical rules. There are rules about pleading, jurisdiction, joinder, discovery, summary judgment, and preclusion—and the rules have exceptions, and the exceptions have their own exceptions. It is easy to feel lost. But a student who sees only the rules is missing…
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First year law students encounter many important concepts for the first time in their torts course. The “reasonable person” and Learned Hand’s formula appear in the Carroll Towing case. The mysteries of causation are introduced in Palsgraf. And debates over whether negligence or strict liability should provide the standard for imposing liability introduce important debates…