This paper revisits the protracted, inconclusive and sometimes unedifying debate prompted by HLA Herbert Hart's famous claim in the Preface to The Concept of Law that the book might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. The paper's argument shall proceed in three stages. First, this paper shall examine Hart's original claim, interpreting it in light of the archival materials -- particularly Hart's working notebooks. In the second stage, the paper shall consider the relationship between Hart's idea that legal theory had to do with both analytical jurisprudence and descriptive sociology, and what might be called the project of special as opposed to general jurisprudence. In the final stage, the paper develops the argument of ...
This paper reflects on the literature on courts and politics in Europe and the United States. US-American Political Science has dealt for several decades already with the role of courts and judges as political actors, whereas this perspective has only recently emerged in Europe. The debates differ not only with regard to the number of articles, but also with regard to their content. This paper discusses the different research perspectives that are being pursued on both sides of the Atlantic. While a major part of the US-American literature investigates the politics of judicial action and the politicization of the legal system, research on European courts confines itself to analyzing the effects of judicial action, often describing them in terms of juridification. Based on a review of th...
Legal doctrines vary in the extent to which they apply either detailed, categorical rules or broad, open-ended standards that allow for case-specific adjudication. Antitrust law is generally thought of as inhabiting the standards end of this spectrum. In fact, however, despite the generality of the enabling statutes antitrust law is rife with categorical distinctions. In this Article, we explore not only the well-known distinction between conduct that is per se illegal and conduct judged under the rule of reason, but also a number of categorical distinctions the courts draw, either to help delineate the scope of the per se rule or to create distinctions within the scope of the rule of reason itself. By and large these rules don't come from the antitrust statutes. They are created by co...
Introduction. I. Classical Liberalism and the Problem of Boundless Autonomy. A. The Value of Autonomy. B. Autonomy and School-Sponsored Prayer. C. Autonomy, the Self, and Society. D. Coercion and Political Ideology. E. The Anatomy of Coercion. F. Are All Religious Ideas that Are Supported by the State "Coercive "?. G. Brief Summary. II. De Facto Establishmentarianism and National Community Values. A. Definitions. B. Historical Perspective. 1. Separationism Versus Disestablishment. 2. Religious Themes in Early American History. 3. The Role of Religion as Conceived in Eighteenth Century America. 4. Connecting the Analyses of Bellah and Mead. C. "Under God" in the Pledge of Allegiance. D. Analysis. 1. "Sidestep and Avoid". 2. Distinguishing Between the Religious and the Patr...
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