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By Lawrence B. Solum Introduction Many legal questions involve the application of settled law to the facts of a particular case. But there are other cases, where the law is unsettled, either because there is no controlling precedent or because there is an ongoing dispute about whether the controlling decision is correct. This topic is…
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By Lawrence B. Solum Introduction There is a fundamental distinction between two kinds of questions that lawyers and judges ask. Let’s begin with some examples of what we can call “issue-level questions”: What is the standard of care in a negligence action? What is the proper test for federal question jurisdiction under 28 USC §1331?…
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By Lawrence B. Solum Introduction First-year law students may come into law school believing that they will learn “the law”–a body of settled rules that decide cases. But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court. Sometimes there…
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By Lawrence B. Solum Introduction Even before entering law school, law students are likely to know that lawyers work with words and ideas. But most law students are likely to get through the first year without learning of one of the most basic distinctions in legal theory–the distinction between words and concepts–and the closely related…
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Introduction By Lawrence B. Solum Law students encounter the notion of “common law” very early in their legal education, frequently in an orientation program or on the first day of classes. The standard law school curriculum includes courses in contracts, property, and torts, which are “common law” subjects. And the reading of common law cases…
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By Lawrence B. Solum Introduction Because the first-year curriculum emphasizes common-law courses (property, contracts, torts), law students may not encounter the concept of “deference” early on. Nonetheless, understanding deference is important in a wide variety of contexts, including standards of appellate review and judicial review of both legislation and administrative action. This entry in the…
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By Lawrence B. Solum Introduction Law students are likely to encounter the concept of discretion early in the first year of law school. Judges make decisions. Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion. Likewise, sometimes…
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By Lawrence B. Solum Introduction Facts are important to the outcome of legal disputes. One of the things that law students may notice is that there are different kinds of factual disputes that arise in legal proceedings. Some factual disputes are about events, occurrences, and transactions that are mostly relevant to the particular dispute–the civil…
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By Lawrence B. Solum Introduction Early in the first year of law school, students are likely to realize that facts are crucially important. But the law school curriculum is designed so as to make the process of legal factfinding almost invisible. The traditional first year courses focus on appellate cases and legal norms. The facts…
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By Lawrence B. Solum Introduction Law students quickly learn that many legal texts are vague or open-textured. Words like “reasonable” and phrases like “freedom of speech” may not provide bright-line rules for their application. This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in…