Legal Theory
The Metropolitan Transit Authority regulates busking—playing music or performing for tips in a public place—differently depending on the subway station. Some stations are reserved for members of a program called Music Under New York (MUNY), while at the others, anyone willing to pay more
What Professor William Eskridge once called “the new textualism” is not so new anymore. Statutory textualism has adherents on the Supreme Court, throughout the federal judiciary, and, increasingly, in academia as well. And almost all of them are politically conservative. Why is that more
The written nature of America’s Constitution has been traditionally regarded as a constitutional virtue, and more recently dismissed as an irrelevancy of form. However, the concept of “writtenness” itself, in the constitutional context, remains vague and undefined. Through a more
There is a fundamental divide among theories of contract law between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act in which persons determine what law will apply to their transaction. On the more
A party in breach of contract cannot sue the victim of breach to recover what would have been the victim’s loss on the contract. The doctrinal rationale is simple: A violator should not benefit from his violation. This rationale does not, however, provide an economic justification for the more
This Article offers a new reading of Hart’s classic Positivism and the Separation of Law and Morals by rethinking the form of positivism Hart was putting forward. Hart’s separationism was not principally intended as a speculative proposition about the conceptual distinctness more
Lon Fuller, in his response to H.L.A. Hart's 1958 Holmes Lecture and elsewhere, argued that principles of legality—formal principles requiring, for example, that laws be clear, general, and prospective—constitute the “internal morality of law.” This Article contends more
The 1958 debate between Lon Fuller and H.L.A. Hart in the pages of the Harvard Law Review is one of the landmarks of modern jurisprudence. Much of the debate was about the relative merits of Hart’s version of legal positivism and Fuller’s brand of natural law theory, but the more
With a clear and compelling ethical vision, H.L.A. Hart attempts to persuade us that it would be better to see law the positivist way. Much of Lon Fuller’s reply can be read as an equally compelling case for seeing law another way. Both articles are rewarding precisely because they bring more
This Article argues that the historical, moral, and political dimensions of the Hart-Fuller debate deserve much credit for its continuing appeal and should prompt a reconsideration of Hart’s own claims about the universality of analytical jurisprudence. The debate illuminates the sense in more