Category Archives: General

Larry Alexander, ‘What to Do in a World Full of Risks: Three Issues’

ABSTRACT When we decide how to act, we realize that things may not work out as we expect. Certainties, for us, lie only in the past. In the future, they exist only for God. For us, the future results of our acts are matters of probabilities, the estimates we make based on the information we […]

‘Trust’

“Trust is important, but it is also dangerous. It is important because it allows us to depend on others – for love, for advice, for help with our plumbing, or what have you – especially when we know that no outside force compels them to give us these things. But trust also involves the risk […]

‘Legal Theory Lexicon: Persuasive Authority’

“The first year of law school usually includes an introduction of some kind to the doctrine of stare decisis (or precedent) and the related concepts of dicta and holdings. For the basics, see the Lexicon entry on holdings. The core idea is that majority opinions usually have a holding, which is a rule implied by […]

Pavlos Eleftheriadis, ‘Corrective Justice Among States’

ABSTRACT The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress […]

‘Justice as a Virtue’

“The notion of justice as a virtue began in reference to a trait of individuals, and to some extent remains so, even if today we often conceive the justice of individuals as having some (grounding) reference to social justice. But from the start, the focus on justice as a virtue faced pressures to diffuse, in […]

John Inazu, ‘Beyond Unreasonable’

ABSTRACT The concept of ‘reasonableness’ permeates the law: the ‘reasonable person’ determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude ‘beyond a reasonable doubt’; claims of self-defense succeed or fail on reasonableness determinations But as any first-year law student can attest, the line between reasonable and unreasonable […]

Zhong Xing Tan, ‘Illegality and the promise of universality’

ABSTRACT Reviews the universal ‘range of factors’ approach towards the illegality doctrine in Patel v Mirza (SC) and whether it has been followed in subsequent cases. Examines its application in the context of contract law and performance, tortious claims, unjust enrichment and cases involving property and trusts. Evaluates claims that the approach is inconsistent, is […]

‘Legal Theory Lexicon: Scalars and Binaries’

“The law frequently requires that we answer a question ‘yes’ or ‘no’. Was the plaintiff guilty? Was the defendant negligent? Was the trial court’s finding of fact clearly erroneous? These questions seem to demand a ‘yes’ or ‘no’ answer. When an issue must be resolved in one (and only one) of two possible ways, we […]

Rosemary Langford, ‘Purpose-based governance: a new paradigm’

ABSTRACT The permissibility of corporations pursuing purposes other than profit has been the subject of debate for a number of years. This debate has intensified recently with proposals to allow or mandate the adoption of purposes by corporations. At the same time, purpose is central to governance in the charitable sphere. This article proposes a […]

Dagan and Zipursky, ‘The Distinction Between Private Law and Public Law’

ABSTRACT Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between private law and public law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the law and economics school constituted a focused and dominant version of the […]