Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we think of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are not committing either historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school...
Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms...
This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced...
Across multiple national surveys sampling more than 12,000 people, we have found that a majority of Americans, more than 60 percent, consider false...
Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated and how they have influenced the...
Sometimes a police officer can only stop a fleeing suspect by striking or shooting him. When is it morally justified to use such force rather than let...
This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo...
In the years since the publication of our book, How Constitutional Rights Matter, many scholars from around the world have engaged with our research...
The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only...
Recent decades have seen a sharp rise in constitutional provisions regulating core aspects of democracy, including the rules about parties, voting...