Private Law Theory

Introduction:
A distinction commonly drawn in legal scholarship deserves scrutiny. To begin to see why, consider this question: What do the following claims by legal scholars have in common?

(1) That economic explanations of tort law which interpret it as an instrument for achieving social goals, such as compensating victims or deterring unreasonably risky conduct (or both), are defective in part because such explanations do not ‘work through’ the concepts that judges invoke in their opinions when deciding cases.

(2) That historical accounts of judicial decisionmaking that explain case outcomes by reference to judges’ ideologies or economic self-interest do not threaten normative interpretations of legal practice because such explanations do not offer courts any concrete guidance as to how to decide future cases.

(3) That political scientists’ criticisms to the effect that legal scholars commonly make fallacious inferences miss their mark because they fail to understand that legal scholars have rhetorical goals not shared by political scientists … (more)

Charles L Barzun, ‘Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship’. 101 Virginia Law Review 1203 (2015).

First posted 2015-09-16 06:00:42