Decisions about intervention can be understood as decisions about tolerance, because an act of tolerance is an act of nonintervention, and, conversely, an act of intervention can be understood as an act of intolerance. But acts of tolerance, typically made under conditions of epistemic...

First Amendment doctrine has traditionally been carved along conceptual rather than institutional lines. Legal categories like “public forum,” “content-neutral,” and “defamation” have dominated the doctrine, with the general understanding being that it was the nature of the speech or...

As is increasingly apparent, the United States is a free speech and free press outlier. With respect to a large range of issues – defamation, hate speech, publication of information about ongoing legal proceedings, incitement to violence or illegal conduct, and many others – the United...

Although the language of the First Amendment refers to freedom of speech, it turns out that most of the vast universe of speech remains untouched (and thus unprotected) by the First Amendment. Antitrust law, the law of securities regulation, the law of criminal solicitation and conspiracy, much...

It is commonly argued that one virtue of common-law rule-making (or law-making) is that the common law judge is enriched in being able to make legal rules while simultaneously seeing one concrete application of such a rule. Under the traditional view, the live dispute before the law-making court...

There is a large literature on legal transitions, mostly focusing on the allocation of the cost of legal change in areas such as taxation and the taking of property by eminent domain. Another literature looks at precedent and rules, exploring the legal system’s own internal constraints on...

Cognitive scientists and others who do research on analogical reasoning often claim that the use of precedent in law is an application of reasoning by analogy. In fact, however, law’s principle of precedent is quite different. The typical use of analogy, including the use of analogies to...

For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate asks whether policy-making or regulation by litigation is more or less socially...

It is widely believed that the structure of free expression adjudication varies dramatically between the United States, on the one hand, and Canada, South Africa, and the European Convention on Civil Rights, among others, on the other hand. Under the conventional wisdom, American freedom of...

In the <italic>Principles of the Penal Code</italic>, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was...