Doctrine and Theory
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Introduction The usual story we tell about statutes is that every statute has the same “force of law,” irrespective of age or importance. Some statutes might be more consequential than others; other statutes might be entrenched politically. But their legal status is the same. The usual story has been challenged by the idea that there…
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Introduction Legal discourse is organized by structures that operate above the level of individual rules. When a constitutional lawyer reads a Commerce Clause case, she does not approach it as an isolated proposition; she reads it within a framework of canonical cases, doctrinal generalizations, normative theories, and historical narratives — a framework that tells her…
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By Lawrence B. Solum Link to the Most Recent Version of this Lexicon Entry Legal Theory Lexicon 110: Soundness and Validity in Legal Argumentation Introduction Legal arguments come in many forms. Lawyers argue from precedent, from statutory text, from policy considerations, and from moral principles. But underlying these diverse forms of legal argument are basic…
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By Lawrence B. Solum Introduction The idea of “general law” or “general common law” is usually introduced to law students in the course on Civil Procedure in connection with Erie Railroad v. Tompkins, 304 U.S. 64 (1938). In that course, students might learn about the distinction between two kinds of common law, local and general.…
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By Lawrence B. Solum Introduction 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…
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By Lawrence B. Solum Introduction The law frequently requires that we answer a question “yes” or “no”. Was the defendant 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)…
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By Lawrence B. Solum Introduction Most law students will encounter “originalism” in their first course in constitutional law. Depending on the instructor, this encounter could be quite short or very extensive. Most law students will know that originalist constitutional theory is concerned with “original meaning,” but they may not know about the differences between versions…
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By Lawrence B. Solum Introduction Law students begin to encounter the concept of a “standard of review” early in the first year. That’s not surprising. First-year law students read appellate cases, and every appellate decision explicitly or implicitly includes a standard of appellate review–a rule that defines the relationship between the appellate and trial court.…