In most modern legal systems, legal rules are widely understood as defeasible, in the sense that the prescriptions of the legal rule may legitimately be overridden or otherwise cancelled when those prescriptions appear to generate substantially erroneous results. As a result, it is common for commentators, including H.L.A. Hart and Richard Posner, to treat the defeasibility of legal rules as an essential feature of rules or an essential feature of law. But defeasibility is in important ways in tension with the goals of the rule of law, and so although there may be good reasons for a legal system to treat some or all of its rules as defeasible, there are also good reasons for refusing to do so. And so long as this is the case, it is a mistake to treat legal defeasibility as essential to law, for doing so both makes a mistake about the nature of law and deprives institutional designers of the advantages that may sometimes come from non-defeasible rules.
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other”—a stranger and not a friend. In this essay...
Although ethical critiques of markets are longstanding, modern academic debates about the “moral limits of markets” (MLM) tend to be fairly limited in...
Many analyses of law take an unsentimental, perhaps even cynical view of regulated actors. On this view, law is a necessity borne of people’s selfish...
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school...
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...
LegalBench: A Collaboratively Built Benchmark for Measuring Legal Reasoning in Large Language Models
The advent of large language models (LLMs) and their adoption by the legal community has given rise to the question: what types of legal reasoning can...