Doctrine and Theory
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Introduction Law students almost always encounter criminal law in their first year, frequently in the first semester. The traditional course in criminal law introduces students to the way the law approaches deep moral questions. What justifies the state’s deliberate imposition of suffering on offenders? What conduct should be criminalized? The criminal law does not (and…
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Many first-year law students experience civil procedure as a bewildering mass of complex and technical rules. There are rules about pleading, jurisdiction, joinder, discovery, summary judgment, and preclusion—and the rules have exceptions, and the exceptions have their own exceptions. It is easy to feel lost. But a student who sees only the rules is missing…
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First year law students encounter many important concepts for the first time in their torts course. The “reasonable person” and Learned Hand’s formula appear in the Carroll Towing case. The mysteries of causation are introduced in Palsgraf. And debates over whether negligence or strict liability should provide the standard for imposing liability introduce important debates…
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Introduction Contracts is a foundational course, almost always included in the first semester of the first-year curriculum in American law schools. Although the focus of contracts courses is usually doctrine, theoretical questions inevitably arise: What is a contract? Why does the law enforce promises? What gives a contractual obligation its force? Should the law of…
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Property is almost always a first year subject. Decades ago, it was most likely a year-long course, but today the course is typically offered in the Fall or Spring. The 1L property course typically begins with possession (capture cases like Pierson v. Post), moves through estates in land and future interests, and then takes up…
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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…