LAW, NORMS & INFORMAL ORDER eJOURNAL

"Conceptual Jurisprudence: An Introduction to Conceptual Analysis and Methodology in Legal Theory" Free Download

KENNETH EINAR HIMMA, University of Washington - School of Law
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This essay attempts to provide an introductory explanation of the nature of conceptual analysis, how it is applied, and why it provides an important enterprise in legal theory. In addition, this essay explains how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. The nature of conceptual analysis in legal theory (conceptual jurisprudence) is explained, and illustrated with accessible examples, as providing an account of those properties that (1) distinguish things that are law from things that are not law which (2) constitute the former things as law. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is explained.

"Lex Terrae 800 Years on" Free Download

TIMOTHY SANDEFUR, Pacific Legal Foundation
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The Magna Carta is one of the "charters of liberty granted by power," that according to James Madison was superseded by American Revolution and its novus ordo seclorum. While we should give measured praise to the Magna Carta as the great-great-grandfather of the American Constitution, we should not lose sight of its shortcomings and the ways the generation of 1776 improved on its precedent. Magna Carta was an important step toward a jurisprudence of freedom — one improved by the American Revolution, and which today’s legal profession has, alas, largely abandoned.

"A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective" Free Download
4 Michigan Journal of Environmental & Administrative Law 303 (2015)

DONALD J. KOCHAN, Chapman University, The Dale E. Fowler School of Law
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Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls? better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.

"Pluralist Property: The Interaction of Legal and Social Norms" Free Download

E. RICHARD GOLD, McGill University - Faculty of Law
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Justice Holmes long ago recognized the conventional nature of property. What he did not explain is how convention and law interact to create the substantive content of property rights: who can do what in respect of a good and when. Contemporary legal theory focuses on the form of property rights – whether they are necessarily rights to exclude or whatever the state says they are – rather than on their substantive contents. In doing so, however, theory fails to address two fundamental features of property. First, property law adapts to new forms of goods, tangible and intangible, over which the state likely had no conception at the time the rule was made. Second, when states create new forms of property, they generally do not actually legislate what one can do with that property, although in practice there are limits. For example, the EU did not define the substantive content of the euro when that currency was introduced despite the complete absence of background law relating to money. Drawing on a combination of property and social norms theory backed up by empirical studies, this article provides a pluralist account of property and explores its consequences for law.

"The Rule of Recognition and the Emergence of a Legal System" Free Download

LUKA BURAZIN, University of Zagreb, Faculty of Law
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The relevance Hart attaches to the rule of recognition, as well as some of its characterisations in The Concept of Law, indicate that the rule of recognition is first and foremost a rule in virtue of which other rules are legal rules. It explains the existence of legally valid norms as such. As a matter of conceptual truth, the satisfaction of the rule of recognition constitutes a norm as law. It can thus be said that the rule of recognition plays an important ontological role and thus has the character of a constitutive rule. But what is the rule of recognition constitutive of? Does it constitute merely particular legal rules as members of a system or a particular legal system as a whole? From what Hart says about the rule of recognition, it can be inferred that it certainly serves at least the first function. It is no doubt the constitutive rule of particular legal rules as elements of a system. However, even though this is not what Hart claims (at least not explicitly), one might also be tempted to see it as a constitutive rule of a legal system as such. What I claim in the paper is that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule.

"Adding Fuel to Fire: A Complex Case of Unifying Patent Limitations and Exceptions Through the EU Patent Package" Free Download
Transitions In European Patent Law Influences Of The Unitary Patent Package, Rosa Maria Ballardini Marcus Norrgård Niklas Bruun (Eds), Kluwer Law International (2015 Forthcoming).

NARI LEE, HANKEN School of Economics
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Harmonization of the laws is considered to be one of the solutions to deal with fragmentation and complexities. A fundamental issue here is how to structure a coherent system of rules to manage with the complex social, technological and economic realities. The increase in the stake holders has also highlighted the need to manage, coordinate or to govern fragmented complexities, including the complexity of connecting legal titles and claims held by multiple and heterogeneous networks of stake holders, with wide geographical scope of these activities. The arguments for a more extensive harmonization, whether they are substantive or procedural, are expressions of the intuitive belief that systematic complexity may reduce the utility of having property entitlement. The discussion to unify and centralize the procedure of handling IP disputes and enforcement, through specialist courts is one such effort to manage and coordinate the complexities. Harmonization of procedural or pre-grant conditions for patent protection has been on the agenda in Europe for some time, the limitation and exception to a patent right has long been the domain of national patent law. This chapter provides an overview of discussion concerning limitations and exceptions to a patent right in the overall context of harmonization of laws in Europe. The chapter assesses the manners of their harmonization in Europe through the adoption of unitary patent system. The chapter will provide first an overview of limitation and exception to a patent right in Europe and how they are drafted in current unitary patent package of the unified patent court agreement (UPCA) and the unitary patent regulation (UP Regulation). Highlighting whether doctrinal unification concerning limitation and exceptions to patent right in Europe is necessary or even possible, this chapter will finally argue that a partial statutory harmonization may create even more complexities and legal uncertainty. The chapter argues that as long as parallel national titles and international system of applications co-exist, fragmentation in the unitary effect of the unitary patent title seems to be unavoidable. Furthermore as there is a built-in deferral to national law, this chapter argues that the solution proposed in the unitary patent system may likely to be adding fuels to fire of complexities and fragmentation.

"'Cold Legal Points into Points of Flame': Karl Llewellyn Attacks Lynching" Free Download

ALFRED L. BROPHY, University of North Carolina (UNC) at Chapel Hill - School of Law
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This essay puts into context a Foreword that Karl N. Llewellyn wrote for a NAACP brief urging the Department of Justice to prosecute an Alabama sheriff for permitting the lynching of two young men in July 1933. They were accused of assaulting and murdering a young white woman in Tuscaloosa County, Alabama. The lynchings took place in the wake of the Scottsboro, Alabama prosecutions and many saw the lynchings as a response to Scottsboro and also to the presence of lawyers from the International Labour Defence who tried to represent the Tuscaloosa defendants. The lynchings, it seemed, were designed to send a message to African Americans throughout the state.

Llewellyn’s long-forgotten Foreword, which no previous scholars have written about, expands our understanding of Llewellyn and of the role the methods of Legal Realism could play in the Civil Rights Movement. Llewellyn looked at the facts to argue that community members and government officials worked together to protect white supremacy from “challenge even in the courts of law.? Such facts turned “cold legal points into points of flame? and made the case for federal intervention.

The brief, thus reflecting the methods of Realism, focused on close examination of facts to see the world fresh and to make the case for reform. It also suggests that the Civil Rights Movement and Realism may have drawn inspiration from a common well of cultural ideas to go back, see the world as it is, and to hold up those facts to the public, and in that way to change the law and legal practices.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School