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...

There was a time when the topic of legal fictions engaged many of the most important thinkers about law, including Jeremy Bentham, Morris Cohen, John Chipman Gray, Jerome Frank, Lon Fuller, Rudolf von Ihering, Hans Kelsen, Henry Sumner Maine, Alf Ross, and Pierre de Tourtoulon, among many...

Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's...

Suppose you have a wooden board, and you need to drive a nail into it. You have the nail, and you have the board, but you do not have a hammer. You do, however, have a pipe wrench. What do you do? Faced with this problem, some people would simply abandon the task. Not possessing the right tool...