Robert Alexy, Radbruch\u27s Formula, and the Nature of Legal Theory

Gustav Radbruch is well known for a formula that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch\u27s formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch\u27s formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it. This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch\u27s formula and Alexy\u27s version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. The particular focus is the methodological question of what Radbruch and Alexy\u27s formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law

Boilerplate, Freedom of Contract, and Democratic Degradation

In Margaret Jane Radin\u27s provocative new book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, 1 the author offers scathing observations regarding the motivation and effects of the terms placed in consumer and employee form contracts and on-line agreements. She argues that the current contracting practices make a mockery of consent, and undermine the rule of law. 2 Boilerplate\u27s essential claim is that for many contracting parties, freedom of contract is less an ideal than a sham. 3 The book properly criticizes theories of contract law (and courses in contract law) that largely ignore boilerplate and its problems despite the pervasiveness of such terms in modern contracting practice. 4 In the process of making her argument, Radin offers an impressive tour across modern contracting practices, Contract Law doctrine, Contract Law theory, political theory, and populist advocacy. Boilerplate is a book from which all readers could benefit, whether or not they ultimately agree with every one of the author\u27s analyses and conclusions

Perfectionist Policies in Family Law

Linda McClain\u27s book, The Place of Families: Fostering Capacity, Equality, and Responsibility, offers a thoughtful approach to government policy in family matters, grounded on what McClain calls “toleration as respect,” in which the government has a role in improving individuals and social institutions, while valuing personal and collective self-government and making a range of choices available. McClain\u27s approach combines elements of liberalism, feminism, and civic republicanism. In the context of considering McClain\u27s proposals regarding marital equality, same-sex marriage, abortion, and sex education, this review essay considers the problem of persuasion and social reform. In a country where many voters and officials do not share the values and proposals McClain endorses, how would one go about effecting the reforms she wants? This review essay, using examples from sex education and same-sex marriage, considers the possibilities, and limits, associated with finding points of agreement, or seeking the common ground of consequentialism

Practical Judging. Book Review Of: Implementing the Constitution. by Richard H. Fallon, Jr.

Book review of: Implementing the Constitution. By Richard H. Fallon, Jr. Harvard University Press. 2001. Pp. 186. Reviewed by: Brian H. Bi

Everything I know About Marriage I Learned From Law Professors

Lawyers and legal academics routinely offer their views on social and political issues. This article considers whether legal academics add any special expertise to the current marriage debates, or whether legal academics should defer to others better suited to answer the questions raised in the marriage debates. The marriage debates involve questions concerning the regulation and definition of marriage, the legal requirements for marriage, and the presence of children. Because of their familiarity with legal analysis, family law doctrine and practice, legal academics and lawyers offer answers and views not available in the rhetoric of the political and media debates on marriage. Even given this special insight into legal analysis, the author concludes that the analysis of areas such as states\u27 interests and governmental objectives in regulating marriage, short-term and long-term effects of social practices and legal regulation, the history of marriage, and society\u27s inconsistent position on same-sex marriage and civil unions, are better suited for political theorists, sociologists, economists, historians, and psychologists

Reflections on E-Marriage Papers

My task is to comment on the rich collection of papers inspired by the E-marriage proposal of Adam Candeub and Mae Kuykendall.\u27 Theirs is a refreshingly novel suggestion, though one with some precedents (in social policy and practice, there is little under the Sun that is entirely new). In the course of commenting on the other papers in this symposium, I will have some reflections on the Candeub/Kuykendall proposal as well

On Questions and Answers in Law\u27s Quandary

This Article will explore a few central aspects of Smith\u27s fascinating and provocative argument. Part I considers the connection between Smith\u27s analysis and one standard Wittgensteinian argument about the causes of philosophical problems. Part II, starting from a different direction, explores the classical approach to law that Smith extols as superior to our own, raises some questions about Smith\u27s portrayal, and considers the extent to which his approach can provide better answers to the quandaries Smith discusses than does conventional modern legal thought