Legal Theory Lexicon
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Introduction First-year law students may come into law school believing that they will learn “the law”–a body of settled rules that decide cases. But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court. Sometimes there is “settled law.” But…
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Introduction Even before entering law school, law students are likely to know that lawyers work with words and ideas. But most law students are likely to get through the first year without learning of one of the most basic distinctions in legal theory–the distinction between words and concepts–and the closely related distinction between sentences and…
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Introduction Law students encounter the notion of “common law” very early in their legal education, frequently in an orientation program or on the first day of classes. The standard law school curriculum includes courses in contracts, property, and torts, which are “common law” subjects. And the reading of common law cases as presented in casebooks…
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Introduction Because the first-year curriculum emphasizes common-law courses (property, contracts, torts), law students may not encounter the concept of “deference” early on. Nonetheless, understanding deference is important in a wide variety of contexts, including standards of appellate review and judicial review of both legislation and administrative action. This entry in the Legal Theory Lexicon provides a…
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Introduction Law students are likely to encounter the concept of discretion early in the first year of law school. Judges make decisions. Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion. Likewise, sometimes executive officials carry out…
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Introduction Facts are important to the outcome of legal disputes. One of the things that law students may notice is that there are different kinds of factual disputes that arise in legal proceedings. Some factual disputes are about events, occurrences, and transactions that are mostly relevant to the particular dispute–the civil action or the criminal…
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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…