Topic
Legal Theory
Posts
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ArticleVol. 101 · Iss. 6
Does The State Have an Obligation Not To Enforce The Law?
Does the State have any obligation not to enforce its own law? Scholars have long debated whether and to what extent we—that is, us…
W. Robert Thomas -
CommentaryVol. 101 · Iss. 4
The Consent of the Governed: Resistance as Constituent Power
The legal status of resistance to tyranny as a universal human right has received little attention in recent years. Following the conclusion of World…
Leigha Crout -
ArticleVol. 101 · Iss. 1
Judicial Moral Prophecy
American judges decry past moral lapses as intolerable. They paint their predecessors’ worst mistakes as tragedies that must never be allowed to happen again.…
Daniel B. Rice -
ArticleVol. 87 · Iss. 2
Is There a Law Instinct?
The widely held view is that legal systems develop in response to purposeful efforts to achieve economic, political, or social objectives. An alternative view…
Michael D. Guttentag -
ArticleVol. 88 · Iss. 6
Stealth Activism: Norm Formation by Japanese Courts
The Article focuses on the political and social roles of the Japanese Supreme Court to the society. It argues with the remarks made by…
Frank K. Upham -
Online2021
Edwards v. M’Connel: Hiding Behind Legal Principles
Edwards v. M’Connel[i] is cited by a Tennessee state law treatise on res judicata, the legal principle stating that a prior court’s decision is…
Kelsie Overton -
ArticleVol. 94 · Iss. 6
Bookends: Justice Stevens and Justice Scalia
The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who…
Gregory P. Magarian -
CommentaryVol. 94 · Iss. 5
To Consider or to Use? Citation to Foreign Authority and Legal Aesthetics
In this essay I consider what it means to consider something. More directly, I consider how a judge might distinguish a source used for…
Andrew Jensen Kerr -
ArticleVol. 95 · Iss. 5
Law’s Evolving Emergent Phenomena: From Rules of Social Intercourse to Rule of Law Society
Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological…
Brian Tamanaha -
ArticleVol. 95 · Iss. 5
Lawness
One of the more important insights in H.L.A.Hart’s The Concept of Law comes on the very first pages of the book, where Hart insightfully…
Fredrick Schauer -
ArticleVol. 95 · Iss. 5
Phenomenology, Colonialism, and the Administrative State
In A Realistic Theory of Law, Brian Tamanaha rejects the claim that universal legal principles exist, and its variant that essential features of law…
Edward L. Rubin -
ArticleVol. 95 · Iss. 5
The Data of Jurisprudence
In contemporary jurisprudential writing, there is no lack of attention to method. Although I have participated in this activity, I have reservations about it,…
Gerald J. Postema