Doctrine and Theory
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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.…