Structure and value in the common law.
The second method through which normative change comes about in the common law is best described as the process of interconceptual change (or as interconceptual salience alteration). In basic terms, this mechanism works by altering the relative salience of different concepts, all of which are embedded in a common law doctrine, to the working of that particular doctrine. Whereas interpretive change effects an alteration of a concept's own normative meaning, interconceptual change accepts a concept's prevailing normative meaning as a given but either enhances or reduces the influence of that concept (and its normative meaning) in the overall scheme of the doctrine.
Common law doctrines routinely entail multiple elements or factors, all of which courts are required to consider during their analysis and application of the doctrine. (173) Each of these elements in turn commonly embodies distinct legal concepts, which in turn contain their own jural and normative meanings as previously described. In interpreting a doctrine, courts do not give factors, elements, and concepts equal weight. Indeed, just the opposite is true. In applying a multi-element doctrine, courts usually emphasize one (or more) elements of a doctrine over others, either explicitly or implicitly. Insofar as the concepts underlying each of the elements reflect different normative ideals, this process of emphasizing or deemphasizing one element over another has the direct effect of raising or lowering that particular concept's salience and its associated normative value for the overall doctrine.
Assume that a common law doctrine contains four independent (and cumulative) elements ([e.sub.1], [e.sub.2], [e.sub.3] and [e.sub.4]), each of which in turn embodies a distinct legal concept ([c.sub.1], [c.sub.2], [c.sub.3], [c.sub.4]). If the concepts emphasize varying normative ideals and values ([n.sub.1], [n.sub.2], [n.sub.3], [n.sub.4]), the process of emphasizing or deemphasizing one or more elements (e.g., [e.sub.3]) of the doctrine as more important than the others has the direct effect of rendering the normative values associated with the concept ([c.sub.3]) contained in that element ([n.sub.3]) more salient and influential within the overall analysis of the doctrine. Indeed, we see this occurring somewhat frequently in the common law, when courts come to treat one element of a multi-element doctrine as more important than others and in the process raise the salience of the legal concept embedded within that particular element. The following examples are illustrative.
The doctrine of adverse possession is without a doubt the most striking and controversial way of acquiring property rights in realty and personality. (174) It effectively allows trespassers to divest rightful owners of their ownership rights and acquire good title to assets that they initially wrongfully possessed. For this to occur, the doctrine requires that the possession be actual, open and notorious, hostile (or adverse), exclusive, and continuous for the statutory period. (175) These requirements are considered the "elements" of the doctrine, but they each originate in an important conceptual device with its own jural and normative content. (176)
Given the somewhat draconian nature of adverse possession as a mechanism of acquiring ownership, as a historical matter courts treated the element of hostility as especially important in the analysis since it allowed them to police the behavior and motives of the claimant. (177) The normative ideal of fairness remained at the core of this emphasis. This perspective reigned supreme when land records were poor and innocent third parties stumbled into others' land and cultivated it, believing in good faith that there was no wrongdoing involved in their actions. (178) The law of adverse possession sought to benefit these putatively innocent occupiers by protecting their labor and reliance interests. Jurally, the legal concept of hostility focused on the intent of the adverse possessor towards the original owner and the asset in question, and examined the adverse possessor's state of mind. Courts emphasizing the element originally seemed to suggest that considerations of fairness required that only adverse possessors who acted in good faith, on the honest albeit erroneous belief that they were possessing their own land, could avail themselves of the doctrine. (179) These courts used the element (and its underlying concept of "hostility" or that the possession be "adverse") to deny other claimants any relief; again, in the belief that the fairness ideals underlying the doctrine were best served by this approach. (180)
More recently, the fairness justification for adverse possession has begun to lose ground and an efficiency-based rationale has begun to gain sway. In this perspective, the goal of adverse possession is to put land to productive use, accomplishing this by simultaneously (1) penalizing slothful owners who allow their land to lay fallow and (2) incentivizing third parties to seek such fallow land and make efficient use of it. (181) On this view, not only was the good faith (i.e., mistaken belief) of the possessor irrelevant, but an affirmative bad faith--wherein the actor knew he or she was trespassing on another's property--was preferable. A minority of courts thus tried altering the very normative meaning of the concept of hostility to require a showing of bad faith, all in order to further their utilitarian emphasis. (182) This process was in essence an attempt to bring about normative change interpretively. In due course, however, this approach failed to garner support. (183) When this occurred, advocates of the normative change--towards utilitarianism--adopted an alternative strategy--namely, seeking such change through an interconceptual salience alteration.
Instead of seeking to reinterpret the concept of hostility in terms of bad faith, courts came to adopt the view that the element of hostility, with its emphasis on the possessor's state of mind, was altogether irrelevant to the adverse possession analysis. (184) In its place, they elevated the element of actual possession and the concept of "actuality" underlying it. (185) Jurally, actual possession requires the court to undertake a factual and empirical examination of the nature of the possessor's use to see if the possessor behaves as a standard owner would. (186) In a vast majority of cases, all actual possession required was the enclosure or improvement of the relevant tract. Clearly, the concept of actuality is more consistent with the utilitarian justification for adverse possession, insofar as it privileges the possessor's actual use of the land. By emphasizing the importance of "actuality" over "hostility" in adverse possession, this approach ensured that the doctrine as a whole came to affirm the utilitarian ideal of effective land use rather than the doctrine's original fairness goals. (187) One element and concept (i.e., actual possession, and actuality) was emphasized, while another (i.e., hostility) was simultaneously deemphasized, in the process rendering salient the normative ideals associated with the former.
A second example of interconceptual normative change is seen in the federal common law of copyright, specifically the famed fair use doctrine. The fair use doctrine sanctions certain unauthorized uses of copyrighted works that would otherwise constitute copyright infringement. (188) In adjudicating fair use cases, courts are required to consider four factors: First, they must consider the purpose of the defendant's allegedly infringing use, including whether the use is commercial or not and whether it is transformative in nature. (189) Second, they must take account of the nature of the plaintiffs copyrighted work. (190) Third, they have to weigh the amount and substantiality of the defendant's appropriation. (191) Finally, they must assess the copying's impact on the actual and potential market for the plaintiffs copyrighted work. (192)
While fair use is today codified in the Copyright Act, it emerged from the decisions of common law and equity courts. (193) Indeed, Justice Story is commonly credited with originating the doctrine in his now famous opinion in Folsom v. Marsh. (194) Even while codifying the fair use doctrine, Congress intended that courts continue to develop it as they had done before, in traditional common law style through the "process of accretion." (195) Indeed, the legislative history accompanying the codification indicates that Congress mandated that "the courts must be free to adapt the doctrine to particular situations on a case-by-case basis." (196) A review of the courts' application and development of fair use jurisprudence since its codification reveals an ongoing tussle between the normative ideals of fairness and autonomy, and efficiency. (197) And in this tussle, we see courts effectively employing the mechanism of interconceptual change to mold the doctrine along the lines of their preferred normative goal.
Early in the development of the doctrine, the rough idea of fairness-manifested in the notion of consumer autonomy--dominated the framing of the doctrine. One of the principal ways in which this was realized by courts was through an emphasis on the first fair use factor, which looks at the purpose of the defendant's use. In Sony Corp. of America v. Universal City Studios, Inc. ,198 the Supreme Court did precisely this. In emphasizing that the defendant's actions amounted to a fair use, the Court focused on the first factor and tied it to the concept of commercialism, noting that "every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." (199) By converting commercialism into the cornerstone of the first fair use factor and implicitly making it the most salient factor in the analysis, the Court was able to find for the defendants, since their use was for a noncommercial purpose. In the process, the Court's ideals of consumer autonomy and fairness were emphasized.
A year later, the Supreme Court revisited the fair use doctrine in Harper & Row Publishers, Inc. v. Nation Enterprises. (200) As scholars have long pointed out, the Court's decision in the case was unquestionably swayed by the effect that the defendant's actions had had on the market for the plaintiff's work. When the defendant copied and published its work, the plaintiff lost its lucrative book deal and a host of other economic benefits to which it would have otherwise been entitled. (201) In the Court's view, finding the defendant's actions to be fair use would be inefficient and harmful to social welfare. In its own analysis now, the Court unequivocally proclaimed that the fourth (as opposed to the first) fair use factor was "undoubtedly the single most important element of fair use." (202) The fourth factor has long been known to embody the concept of "market effect," which entails a scrutiny of the economic harm that the defendant's copying imposes on the plaintiff. (203) In no uncertain terms, the Court even connected the concept of market effect to efficiency considerations, citing to economic literature on the question. (204) Upon so doing, the Court concluded that the fair use analysis needed to emphasize the normative ideal of economic efficiency, which in the end favored the plaintiff.
In both instances, we see the Court raising the salience of one element or factor over others in the analysis and then highlighting an important conceptual device embedded within its preferred factor. Then, using the normative ideals associated with that concept (or its normative meaning), the Court is able to render that normative goal pervasively influential in the overall fair use analysis. In Sony, the Court emphasized the concept of "commercialism" over all other concepts, while in Harper & Row, the Court emphasized "market effect" over commercialism and other concepts or ideals. This was in essence the process of interconceptual normative change.
We see the Court continuing to use the vehicle of interconceptual change in later fair use decisions as well. The 1990s saw far-reaching changes in the production and dissemination of expressive content. The emergence of new technologies allowed creators to freely borrow from pre-existing works in the process of creating new ones, a paradigm colorfully described by some as "remix." (205) This paradigm gained instant popularity in the world of music. Creators in other areas were quick to follow suit and many academics called on the copyright system to enable the new creative paradigm on grounds of individual autonomy.
In Campbell v. Acuff-Rose Music, Inc., (206) the Court was asked to determine the legality of this practice using the fair use doctrine. In deciding to emphasize the ideal of individual autonomy in the creative process, the Court chose to simultaneously deemphasize both the notion of commercialism and efficiency considerations standing on their own. Drawing on academic literature, it thus developed the concept of "transformativefness]," which it read into the first fair use factor. (207) Upon doing so, the Court then reasoned that this concept--embedded into the first factor--was of such importance that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use," (208) in effect suggesting that the concept of transformativeness ought to trump both commercialism and market efficiency. Once again then, we see the use of the interconceptual method in fair use in order to realize a normative change in the doctrine: from market efficiency back to individual creative autonomy. (209)
Interconceptual change is thus a frequently adopted mode of normative change in relation to common law doctrines that consist of multiple elements or factors. It relies heavily on the connection between each element and a specific conceptual device embedded within it and works by altering the relative salience to the doctrine of the different elements--and with it the different concepts and their normative underpinnings.
3. Additive Change
A third mechanism of concept-reliant normative change in the common law involves the process of introducing an altogether new conceptual device into an area of doctrine, with the express understanding that the new concept embodies a normative ideal that is seen as beneficial and worthy of consideration within that particular area. In other words, it entails the addition of a new concept to the area in question, in the process imbuing that concept with a specific jural--and normative--meaning.
The concept being introduced to the area in question need not be completely new in the sense of being altogether invented for this particular purpose. To the contrary, in most situations, the concept is one that is taken from another area of doctrine and modified sufficiently to meet the purposes of the new area. It therefore can partake of what scholars have described as the phenomenon of interdoctrinal borrowing. (210) What is important to appreciate in the process of additive change, however, is that the introduction of the new concept is rarely ever open-ended and purely jural--in the sense of merely injecting the concept into the area without a clear sense of how it will be used or the normative ideals with which it will be infused. To the contrary, the very molding of the concept imbues it with a distinct jural meaning and a sufficiently stable normative meaning (for the area), which its originators see as important to the substantive doctrinal area in question.
As mechanisms of normative change in the common law go, additive change is perhaps the most overt and direct. It is for this reason that it is somewhat rare, especially in comparison to both interpretive and interconceptual change, both of which are far subtler in nature. Additive change in the common law amounts to a direct process of judicial lawmaking, which common law courts are only rarely comfortable admitting to, whereas both interpretive and interconceptual change can be seen as mechanisms of legal interpretation that fit well with the assumptions of the declaratory theory of common law adjudication. The following examples illustrate the working of this method.
The law of landlord-tenant relations has long been characterized by a disparity in bargaining positions between landlord and tenant. This disparity is especially acute in the context of residential housing where landlords are seen to be motivated almost exclusively by economic considerations, while tenants are driven by concerns that affect their everyday living situation. (211) As scholars have noted, efforts to cure this inequality have characterized the very development of landlord-tenant law in the United States. (212) One of the most important developments in this regard emerged in the year 1970 under the doctrine of the implied warranty of habitability, which in turn revolved around the concept of "habitability." (213)
In Javins v. First National Realty Corp., a set of residential tenants sought to withhold their rent payments when the landlord refused to make a series of important repairs to the premises. (214) Acknowledging the gross disparity between landlords and tenants in the region, Judge Skelly Wright approached his analysis with the observation that "the common law itself must recognize the landlord's obligation to keep his premises in a habitable condition." (215) He then concluded that "a warranty of habitability [must] be implied into all contracts for urban dwellings," and that the content of the local housing code should inform this warranty. (216) Thus emerged the doctrine of the implied warranty of habitability, which imposed a new duty on all residential landlords to ensure that their premises were maintained in a habitable condition at all times. This duty in turn originated in the concept of "habitability," reflecting the jural idea that a putative residential dwelling had to be evaluated by certain external criteria for its suitability as a residence.
Javins is universally credited with having introduced the implied warranty of habitability, and the very concept of habitability, into the common law of residential leases. (217) In addition, there remains little uncertainty about what Judge Wright was seeking to achieve through its introduction. He was driven almost entirely by the desire to cure what he saw as the substantive inequality embodied in the residential landlord-tenant relationship and to imbue the regime governing that relationship with the ideal of substantive transactional equality. Transactional equality was thus his principal normative goal, and the concept of habitability was a perfect vehicle for it. As Javins conceived of it, the concept of habitability was meant to force not just an evaluation of the premises but also an evaluation in terms of its tenant-friendliness, so as to ensure equality in contracting positions. The concept of habitability--as articulated by Javins and later cases--was thus intrinsically aligned with the normative ideals of tenant protection and tenant equality, and it overtly introduced these ideals into the law.
A second example involves the common law's set of interests that are identified by the concept of "quasi-property." In a variety of situations, the common law allows an individual to exclude others from an object or resource, without endowing that individual with the full set of rights over that object that are characterized by the idea of property (e.g., the right to alienate). (218) In these situations, common law courts have employed the concept of "quasiproperty" to develop a jural basis for the exclusion and, in addition, have endowed the idea with a specific normative meaning contextually. The most prominent instance where this has occurred is in relation to the law of unfair competition, the "hot news" misappropriation doctrine. (219)
In International News Service v. Associated Press, the question was whether a collector of time-sensitive factual information (i.e., news) could prevent a competitor from freeriding on its collection efforts until such time as it published its findings and reaped the economic benefits from its efforts. (220) Recognizing a regular ownership interest in such information would have entailed a set of consequences that the Court wanted to avoid--such as whether the right could be used to control the flow of such information, whether members of the consuming public could be precluded from using it, etc. (221) Instead, what the Court nonetheless recognized as crucial was developing a mechanism to prevent one competitor from freeriding on the efforts of another, in the recognition that such freeriding was economically harmful to the news-collection industry as a whole. (222) The Court in International News Service therefore developed the misappropriation doctrine, which allowed for an action to be brought against a freeriding competitor for a limited duration. Firmly embedded within the doctrine was the concept of quasi-property, which the Court used to describe the nature of the interest that the plaintiff newsgatherer had over the information in question. Or, as Justice Pitney famously put it in his majority opinion:
Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public. (223)
It is crucial to appreciate what the Court was doing by introducing the concept of quasi-property into the discussion. First, it was offering up a jural basis for the claimant's entitlement to exclude a freeriding competitor. Quasi-property represents a relational entitlement that situationally entitles its holder to exclude another from an identifiable resource. (224) Second, the Court was also endowing this interest with a distinct normative basis--rooted in the avoidance of freeriding, in order to preserve the efficiencies of the newsgathering industry. (225) The normative basis of the concept, as the Court applied it to the case, was thus rooted in utilitarian considerations. It is questionable whether a desultory reliance on the idea of property might have enabled the Court to inject distinctively utilitarian--as opposed to moral--considerations into the analysis. The concept of quasi-property proved to be a perfect addition to the debate in order to realize this objective.
Interestingly enough, the concept of quasi-property has been introduced into other doctrinal contexts, where it has been understood as embodying the same jural meaning but with a different normative content. Its role in grounding the right of sepulcher is a good example. The right of sepulcher refers to the rights that family members have over the corpse of a deceased relative. (226) These rights normally extend to being able to bury the corpse, perform all necessary last rites, and determine how to dispose of the mortal remains. It also, very importantly, entitles a holder to commence an action against third parties for unauthorized interferences with the corpse, on the assumption that such interferences produce extensive mental anguish for the relatives. (227)
In developing these rights, common law courts across the United States have relied extensively on the concept of quasi-property, understanding it to represent a non-ownership-based entitlement over an object (i.e., the corpse) that entitles its holder to exclude others from it. (228) Interestingly, though, their normative reason for relying on the concept appears to have been largely nonutilitarian. It was rooted instead in the interest of protecting family members from the emotional and psychological anguish that interferences with the corpse might generate, without overtly commodifying the entitlement as a form of property. 229 The concept of quasi-property in this context--as developed by courts--thus assumed a different normative meaning from the concept as used in the unfair competition setting. Here, it partook of distinctly moral concerns, even though its jural structure remained the same as in the unfair competition context. This divergence in normative meaning between the two areas brings home the core idea described earlier about the duality of meanings that concepts routinely carry. This is not to suggest that courts introducing the concept into the discussion of sepulcher rights were doing so without a clear sense of the concept's intended normative meaning. To the contrary, they saw the concept as sufficiently jurally stable so as to enable it to carry their intended normative meaning, rooted as it was in considerations of dignity and emotional harm. In so doing, the concept served their purpose of introducing a dignitary entitlement over the object into the area without simultaneously commodifying that relationship. In short, the concept effected an additive normative change.
Before moving on, it is worth noting that the process of additive change, unlike the two previous mechanisms of change, usually involves a direct doctrinal change to the law as well. In this respect, additive change therefore combines both mechanisms of doctrinal and normative change. Nevertheless, its primary impetus unquestionably remains the need to introduce new or underemphasized normative goals into an area of law. It is therefore indelibly a form of normative change in the law.
While the three mechanisms of normative change described here may not exhaust the entire gamut of mechanisms through which the common law works in normative change, they do nonetheless represent the most prominent and commonly seen mechanisms. In addition, common law courts invariably weigh a variety of different considerations when choosing amongst them, such as the extensiveness of the intended change, the acceptance of judicial lawmaking within the area, the driving force behind the change in exogenous normative conditions, the likelihood of its persistence over time and context, and their ability to analogize to other areas where such change has been brought about. Upon a weighing of these considerations, common law courts then embark upon one or more of the previously described strategies, occasionally employing them in tandem. In addition, as noted before, the dynamics of the mechanisms at issue are often fairly subtle, with courts rarely ever making their reliance on a particular mechanism explicit or obvious. The table below represents a simple comparison of the three methods described in this Section.
Having described the structure of legal concepts, and the critical role that they play in anchoring the common law, enabling normative change in common law doctrines, and in grounding common law reasoning and legal disagreement around a core minimum of shared understanding, this Part addresses the implications and consequences that flow from our account. In particular, we address three important implications that flow from our prior analysis.
A. Conceptualism, Formalism, and Realism
Ever since Legal Realism has become a dominant mode of analysis among American legal scholars in diverse subject areas, the study of the common law as a coherent body of law has fallen out of favor. (230) Individual common law subjects such as property, torts, and contracts are discussed and analyzed almost exclusively as merely embodying important normative goals and ideals. (231) The actual jural content of the common law as an integrated body of law, embodied in its multifarious concepts and devices, is treated as a largely contingent feature of the system. (232) Additionally, all too often this jural apparatus is conceived of as open to pure manipulation by courts and litigants. (233) Some even suggest that common law concepts are devoid of all jural significance and independent meaning. (234) One torts scholar's argument that the legal concept of foreseeability might as well be called "strawberry shortcake," because it is so open-ended as to be rendered altogether meaningless, is a particularly good (and extreme) example of this phenomenon. (235) In short, Legal Realism--at least in its extreme version--has succeeded in having the jural and doctrinal mechanisms of the common law characterized as altogether contingent features of the system. (236) While a growing body of scholars has sought to reverse this trend along the lines suggested by our account here, the influence of Legal Realism remains pervasive in American legal thinking. (237)
Despite its extreme aversion to formal concepts and doctrinal mechanisms, Legal Realism did have important lessons for the study and analysis of law. In debunking the idea that legal reasoning could be altogether autonomous, or that legal concepts could on their own provide judges with answers in individual cases ("mechanical jurisprudence" (238)), it forced legal scholars to look outside of the law for their analysis and to appreciate the role that external influences play on the content, meaning, and application of the law. (239) This lesson is without doubt an important and enduring contribution of Legal Realism. Yet, when taken to its extreme, it came to be understood as suggesting that legal analysis needed to look entirely to external factors to understand the law, and that an internal analysis of the law's own concepts and devices was for the most part a misguided and myopic enterprise. (240)
The rudimentary lessons of Legal Realism are nevertheless perfectly compatible with recognizing an important role for concepts in legal analysis and reasoning. As one prominent scholar notes, "there is no necessary incompatibility between rigorous analysis of concepts and a realist approach." (241) This presumptively clear divide between the realists and formalists--whether real or perceived (242)--has served to distract from the functional role that legal concepts continue to play in common law reasoning to this day; a role that nearly six decades of Legal Realist criticism have failed to eliminate or even attenuate. The simple point remains that the choice between formalism (in the sense of a "mechanical jurisprudence") and realism (in the sense of extreme rule or doctrine skepticism (243)) as modes of legal analysis need not be binary. One can admit a role for legal concepts and related doctrinal devices, while simultaneously acknowledging the presence and significance of external influences on the meaning and application of those concepts and devices. The duality of meaning that we described previously enables precisely such an intermediate position. It recognizes, on the one hand, that the law's concepts are not just contingent attributes of the common law system, and on the other, that they are informed and reconstituted by ideals and influences from outside the legal system. The mere fact that concepts are integral to the system need not endow them with autonomous significance to the decisionmaking process. To the contrary, recognizing their limited importance in the process of reasoning to a decision in a case allows for an important intermediary position between realism and formalism as modes of legal analysis.
In our account, legal concepts are real, in the sense of being endowed with a normativity of their own by virtue of their origin in the law, in turn enabling them to play an important constraining effect on the form and structure of legal reasoning, though not in its actual normative content. (244) Acknowledging their realness by no means requires accepting that they exclusively influence decisionmaking. Their constraining effect preserves a level of continuity in the law and ensures a chain-novel-like rendering of common law decisions. (245) The mistake of the extreme Legal Realists lies in their inability to recognize that legal concepts can play an important role in the mode and style of common law reasoning, without deluding judges and lawyers into a belief about their autonomous role. (246)
Legal concepts--and the pervasive conceptualism of the common law-- gives Legal Realism a distinctive style of reasoning and argumentation, which allows judges to develop an element of continuity with the past, while simultaneously enabling individual doctrines to keep up with changing needs and preferences. And this is our core point: to the extent that common law rule development is judge-made law, developed in a backward-looking process from the context of individual disputes, conceptualism will remain a core attribute of the system. (247) Rather than working as a system of active deception, legal concepts serve the all-important role of grounding common law analysis in a common language that has been essential to its persistence over time and context. Common law judges who rely on legal concepts are hardly delusional or misguided, and certainly do not believe that such concepts are wholly autonomous. Legal concepts are instead the vehicle that the common law uses to justify judicial lawmaking, which must inevitably balance the past, present, and future all at once. (248)
Even when they acknowledge a role for legal concepts, prominent accounts of common law reasoning view such concepts and their purported meaning as a veritable distraction, rather than as an integral part of the system's machinery. Consider Edward Levi's famous account of legal reasoning. (249) A prominent Legal Realist, Levi saw common law reasoning as originating in the process of analogy. (250) Unlike other realists, however, he admitted that legal concepts were routinely used in such reasoning. Concepts could thus evolve to have a "limiting influence--so much so that the reasoning may even appear to be simply deductive." (251) He puts the point most starkly when he therefore notes that
it is not simply deductive. In the long run a circular motion can be seen. The first stage is the creation of the legal concept which is built up as cases are compared.... The second stage is the period when the concept is more or less fixed, although reasoning by example continues to classify items inside and out of the concept. The third stage is the breakdown of the concept, as reasoning by example has moved so far ahead as to make it clear that the suggestive influence of the word is no longer desired. (252)
The centrality of "reasoning by example," to Levi, causes common law courts to eventually realize the futility of their reliance on concepts and abandon an established concept altogether in favor of pure analogy. (253) As an example of this cycle, Levi offers up the series of cases developing the idea of "inherently dangerous" products, which culminated in Judge Cardozo's famous opinion in MacPherson v. Buick. (254) Levi argues that Cardozo's expansion of the concept resulted in its complete breakdown, with courts then coming to realize the distinct advantage of pure analogical reasoning over conceptualism. (255) Yet what Levi seems to ignore altogether is that Cardozo's move--and that of later cases--was not simply the abandonment of the old concept. It was, instead, the replacement of the old concept with a broader and more pervasive one that continues to inform the area of law to this day: the concept of the "duty." (256)
Levi's argument illustrates how theorists who are sympathetic to concepts nonetheless see them as a distraction in the overall scheme of common law reasoning rather than as integral to the system's working. While reasoning by example may indeed represent the way in which common law courts develop and apply the law, (257) courts continue to do so through the identification of common patterns and ideas in cases, which they invariably come to rely on, and develop legal concepts as the jural lenses through which they view the facts that produce those very patterns. (258)
As Brian Tamanaha has recently argued, much of the Legal Realists' ire against formalism and conceptualism originated in the mistaken belief that the common law was somehow wedded to the idea of the declaratory theory of lawmaking, according to which judges never make the law themselves but merely find the law in past decisions. (259) Tamanaha's evidence shows that even in the supposed heyday of formalism, most lawyers and jurists readily conceded that common law judges were actively making new law even when they were not overtly modifying legal doctrine or replacing old rules with newly constructed ones. (260) Common law reasoning (both then and now) adopts a method that purports to minimize external doctrinal disruption while simultaneously reaching results demanded by changing situations and contexts. Indeed, it is this disconnect between the minimal (or lack of) extrinsic change and the actual result in individual cases that seems to have produced the harsh realist critique of formalism and its reliance on concepts. (261) Despite this, as Tamanaha rightly points out, "the common law has carried on for centuries without visible alteration in method," (262) even while undergoing a great deal of substantive and normative change. What this points to then is that the common law's reliance on conceptual thinking originates in its very structure as a method of judicial lawmaking, which in turn necessitates realizing a delicate balance between doctrinal stability and normative change. The rote criticism of conceptualism in the common law misses this reality altogether.
Understanding the persistence of legal concepts in the vocabulary and content of common law reasoning thus necessitates treating them as "real" and endowed with their own functional significance that judges are aware of and readily accept in the interests of continuity in the working of the law. Now it might well be true that institutional considerations call into question the very virtue of the common law as a method of rule development and reasoning, insofar as it is believed that courts are "ill-equipped" (263) to make law. This is, however, a different question: so long as the common law subsists, we contend that it will continue to develop by relying on legal concepts.
B. Facilitating Normative Pluralism
An additional, important implication that flows from our previous analysis relates to the common law's ability to accommodate a multiplicity of normative goals and values. Our analysis of how concepts work and their reliance on a duality of meanings suggests that the common law adheres to a model of functional pluralism. Unlike structural pluralism, functional pluralism posits that common law institutions come to affirm and advance varying--and at times, conflicting--normative values. It achieves this not simply by delineating separate spheres of influence for each of these goals whereby each value is only ever realized within the confines of an individual doctrinal area (264) but instead by enabling a doctrinal area to embrace different values, varying over time and context. The normative meaning of legal concepts thus enables common law doctrine to adapt itself to conflicting preferences and contexts, each of which might demand a different normative value or ideal.
The open-endedness of common law concepts (i.e., their open texture) should thus be seen as an active invitation from the common law to purveyors of different ideals, values, and ideologies, who are called upon to interpret and apply these concepts to individual cases and contexts using their preferred normative ideal. Over time, these purveyors--value entrepreneurs, so to speak--who might be either judges, scholars, or lawyers, seek to ensure that their chosen normative value comes to be instantiated in the normative meaning of a legal concept, and that this instantiation acquires a level of relative stability owing to stare decisis and the overall path dependence of common law adjudication. Sometimes this entrepreneurship is successful, and sometimes it is unsuccessful, especially in the face of openly competing considerations. Consider, as an example of the latter, the Hand Formula in tort law. (265) Despite its advocates, in actual practice (i.e., as applied by courts), the Hand Formula has been of limited influence in courts' construction of the normative meaning of the "duty of care" in negligence law. (266) In its place, a host of other fairness-based considerations seem to be more prevalent in courts' analyses. In this process, divergent considerations and values thus compete with each other for salience and affirmation in the reasoning of courts, with courts then seeking to resolve this facial incommensurability through a process of practical reasoning from within the context of the dispute--a hallmark of common law adjudication.
Incommensurability refers to the idea that plural values are often times hard to compare against each other, owing to the lack of a common measure along which to undertake the comparison. (267) This phenomenon is "more apparent in the law than anywhere else," (268) and the common law in particular is often singled out as being especially susceptible to the problem of incommensurability given the range of activities and contexts to which it is applied. At the same time though, the common law is also held out by scholars and theorists as embodying what is perhaps the best known approach to solving the problem of incommensurability: practical reasoning (or practical wisdom). (269)
At its simplest, practical reasoning refers to the process of deliberating about choices that result in action. Practical reason is "concerned not with matters of fact and their explanation, but with matters of value, of what it would be desirable to do ..., [and with making reasoning agents] assess and weigh their reasons for action, the considerations that speak for and against alternative courses of action that are open to them." (270) To Aristotle, practical reasoning was thus reasoning that resulted in, or was directed at resulting in, action. (271) Given its focus on action, one of the characteristic features of practical reasoning is therefore its indelible connection to the specifics of the situation necessitating the choice in question. (272)
As a solution to incommensurability, practical reasoning therefore adopts what philosophers have described as the pragmatic theory of value, (273) rooted in the idea that "the meaning of a statement is exhausted by its practical implications." (274) Accordingly, it entails examining how a given value, when applied to a particular situation, produces a set of consequences. The decisionmaker must then compare and contrast those consequences to examine their overall acceptability. Practical reasoning thus recognizes the centrality of making a choice among competing values situationally. As the philosopher David Wiggins puts it, practical reason is in the end a "judgment that one course of action is better than another," (275) rather than an avoidance of such judgment, or an attempt to decide by reference to single value or end, referred to as "monism." (276) Practical reasoning is thus indelibly a form of pluralism.
Legal concepts facilitate the process of practical reasoning through their duality of meaning. While the jural meaning of a concept operates as structural constraint that guides the nature of the court's inquiry, the normative meaning inevitably involves a choice among competing considerations and values, which the court must undertake through the lens of the particular facts involved in the case, rather than merely by adhering to some normative pre-commitment. Indeed, this reality perhaps explains why some judges, who in their scholarly contexts remain committed to certain foundational values, are nonetheless openly "pragmatic" and potentially pluralist in their decisionmaking in individual cases. (277) Practical reasoning in this sense has often been described by legal theorists as the nascent "craft" that underlies common law adjudication, which helps influence judges' choice among competing normative ideas underlying the working of abstract rules, and in turn the competing normative meanings contained in a legal concept. (278) Karl Llewellyn described this ideal most forcefully in his account of the common law:
The existence of a craft means the existence of some significant body of working knowhow, centered on the doing of some perceptible kind of job.... [E]very live craft has much more to it than any rules describe; the rules not only fail to tell the full tale, taken literally they tell much of it wrong; and while words can set forth such facts and needs as ideals, craft-conscience, and morale, these things are bodied forth, they live and work, primarily in ways and attitudes which are much more and better felt and done than they are said. (279)
The duality of meaning underlying legal concepts reinforces the craft of practical reasoning that is central to the working of the common law. It compels judges to balance jural and normative meaning, while understanding the latter in terms of the normative goals best suited to the particular case at hand. Those demands originate from a variety of considerations--situational and institutional (e.g., precedent)--and yet allow for the process of choice to be reasoned. In this sense, then, the very idea of a concept's normative meaning is determined situationally, in pragmatic and reflective fashion rather than in the abstract, or in isolation from the demands of the case. The common law, as Holmes famously observed, "decides the case first and determines the principle afterwards." (280) Choosing among plural normative considerations in the common law is therefore a contextual process embedded within the interpretation and application of legal doctrines to factual situations and occurs on a routine basis through the process of giving normative meaning to legal concepts.
The process of determining the normative meaning of a legal concept is rarely ever done in a purely deductive fashion where a court reasons from first principles to the individual concept and its application. Instead, the process is largely dialogic and moves between the preferred outcome in the individual case and the general principle that explains or justifies the decision. (281) Emily Sherwin describes this "natural reasoning" in the common law as a process where "[t]he judge begins with an intuitive judgment about the best outcome for the case, then formulates a more general principle that supports the initial intuition." (282) Having done this, "[t]he judge then tests the principle by considering other instances to which it might apply and adjusts both principle and intuition to reach an acceptable accommodation." (283) Thus the normative meaning of a legal concept takes shape through a combination of inductive, deductive, and analogical methods; but it begins with the fundamental recognition that the concept--and the doctrine that it is embedded within--must play a role in deciding the case at hand. It is, in other words, constrained very heavily by the primary purpose for which it is being discerned, rather than as a purely philosophical or ideological matter. Gleaning the normative meaning of a legal concept to reach a decision is the very process of practical reasoning that the common law is believed to embody.
For this reason, legal concepts contribute to a form of practical reasoning that is openly pluralist in structure and orientation. Additionally, this pluralism--which is functional in nature--is dynamic, rather than static. Legal concepts can affirm a multitude of different normative values and ideas sequentially, over time and context. Because the triggers of normative change--such as changing socioeconomic needs, preferences, or judicial predispositions--originate externally to legal doctrine itself, proponents of specific normative values and ideals are always at liberty to offer a normative account of a legal concept that comports with those values and ideals. This is not to suggest that there is no stability whatsoever in the normative meaning of concepts over time. To the contrary, institutional attributes of common law decisionmaking ensure that the normative goals of the common law remain minimally stable but partake of a dynamism and generativity. Our account therefore concretizes the common law's essential structure as a functionally pluralist institution.
C. Legal Concepts as Anchors in Normative Legal Reasoning
Our final claim concerns the indispensability of legal concepts to normative theorizing in the law. Specifically, we contend that normative theories of law cannot proceed in a free-floating manner; rather, they must be moored to legal concepts. In our view, it is not accidental that efficiency-minded scholars do not simply post a general call to "maximize welfare." Nor is it surprising that theorists who believe that the paramount value is justice do not settle for a call to do "what is just." We posit that any normative discourse of the law or legal reforms, typically both will--and should--rely on legal concepts. Consider the following example.
The "Hand Formula," developed by Judge Learned Hand in his opinion in United States v. Carroll Towing Co., (284) purported to introduce a cost-benefit analysis into negligence law and is commonly considered an attempt to move the normative orientation of negligence analysis towards efficiency. (285) Yet even when offering up his famous equation--"B < PL"--Judge Hand categorically noted that he was doing so to give content to the very concept of duty, and not liability for negligence in the abstract. (286) Or, as he observed: "[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables." (287) Judge Hand could easily have noted that liability for negligence in the abstract derives from his calculus. Instead, he characterized his argument in terms of duty, central to the negligence analysis. Thus, concepts anchor normative reasoning in the law.
Our argument echoes the position espoused by John Goldberg and Benjamin Zipursky in the context of tort law. (288) In their critique of Justice Holmes's skepticism of the concept of duty and William Prosser's subsequent proposal to replace existing negligence doctrine with an open-ended cost-benefit analysis that compares alternative liability regimes, Goldberg and Zipursky note that the Holmes-Prosser model suffers from several deficiencies. (289) First, from an institutional standpoint, there is strong reason to believe that the legislative and executive branches are better suited to engage in policymaking while considering all relevant factors. (290) Second, a negligence model that is based on open-ended cost-benefit analysis gives rise to the specters of arbitrariness, indeterminacy, and doctrinal instability. (291) Furthermore, as they point out, the transformation of negligence law into an unconstrained policy analysis "threatens to drain the analytic structure from torts." (292) Third, and most importantly, it would sever the crucial connection between law, morality, and responsibility, a connection that is vital to the successful operation of the law. (293) This final point warrants elaboration.
In a series of articles, Goldberg and Zipursky have mounted a defense of the concept of duty by placing it in the broader context of the human experience. Legal concepts and norms are deeply rooted in the concept of responsibility sustained by social interactions. On this view, law reflects, as well as reshapes, "the basic obligations that persons owe to various others as they go about their lives." (294) Goldberg and Zipursky maintain that the "law is as much education, explication, articulation, and reinforcement as it is command or threat." (295) Legal concepts, therefore, are informed by interpersonal interactions and daily experiences. They are familiar to individuals and entail the same kind of thinking and behavior as required in social and personal settings. (296) In this view then, legal concepts perform the all-important role of translating the demands and requirements of social interaction into normative ideas that form the basis of the legal system's construction of responsibility and liability.
In other work, Thomas Merrill and Henry Smith have advanced a similar theory connecting property law to conventional perceptions of morality. (297) They make the dual claim that any sustainable property system must be "infused with moral significance" (298) and that the U.S. property system embodies a moral perspective at its core. (299) Merrill and Smith view property as "a device for coordinating both personal and impersonal interactions over things." (300) As rights in rem that avail against the rest of the world and turn all individuals into duty-bearers vis-a-vis property owners, property rights "must be communicated to a wide and disparate group of potential violators," (301) in a clear manner impervious to misinterpretation. (302) This means that all the subjects of a particular legal system must be aware of the restrictions imposed upon them by various property doctrines.
Property can achieve this goal only if its doctrines overlap with widespread moral conventions that exist in the relevant community. Merrill and Smith proceed to demonstrate their thesis by analyzing various property doctrines. (303) Like Goldberg and Zipursky, Merrill and Smith highlight the interdependence between law and other norms and responsibilities that regulate human behavior and actions. For Merrill and Smith, though, morality is prior to law, but law--through its legal devices and concepts--is seen to play the role again of converting the ideals of social and conventional morality into independent legal constraints.
But the problem with free-floating decisionmaking free of doctrinal constraints runs even deeper. Even if it were in principle desirable for courts and individual actors to engage in abstract policy analysis, it would likely be impracticable. As Herbert Simon famously noted, individuals cannot be reasonably expected to evaluate all the possible outcomes of a policy or legal rule because individuals do not have access to all the relevant information, and they could not process and evaluate it if they did. (304) As a result, individuals often rely on heuristics when facing complex choices. (305) Heuristics allow decisionmakers to make mental shortcuts that simplify complex decisions. The use of heuristics is not limited to financial or economic decisions. Heuristics have been shown to guide individuals when they are faced with moral dilemmas. (306) Similarly, heuristics have been posited to play a significant role in the law. (307)
The common law's concepts serve as heuristics that facilitate decisionmaking by individual actors and judges within the common law system. Consider once again the concept of "reasonableness." While actors may not have the mental resources or the information to arrive at ideal philosophical solutions that take into account all possible outcomes and justice considerations, individuals can still figure out what constitutes reasonable behavior in a particular set of circumstances. They understand that the law or rule is asking for a normative evaluation of an action or outcome based on the individual's own internal calculus. Similarly, actors have a plausible sense of what "good faith" means based on their everyday interactions and general life experience. At the very least, actors can determine what kinds of behavior in their opinion amount to "bad faith" and avoid them.
The principal virtue of heuristics is also their main vice. While some scholars have lauded the use of heuristics, explaining that they enable fast decisionmaking and lead to largely accurate decisions, others critique heuristics' tendency to oversimplify complex problems and lead individuals to answer the wrong question. In moral contexts, some scholars are even more openly critical of the use of heuristics. (308) Sunstein, for example, argues that the use of heuristics often leads us astray by blinding us to the possibility of better, though more complex, solutions to moral problems. (309) This criticism of heuristics largely misses the point. Heuristic-based decisionmaking was born out of necessity. In an ideal world, actors could be expected to immerse themselves in the difficult dilemmas of moral philosophy or welfarism. In the real world, actors do not have the resources or mental capacity to do so. As Simon famously observed, we do not optimize; we satisfice, that is, we reach decisions that are good enough. (310)
The question thus becomes: are our legal heuristics good enough, or can they be improved? Let us be clear that we do not argue that common law concepts--insofar as they function as heuristic devices--are perfect. We readily admit the possibility that some common law concepts could have been substituted by other concepts that can better function as heuristics. Indeed, as we discussed previously, some legal concepts are deemphasized over time and others are practically abandoned or retired. Likewise, the normative meaning of common law concepts is routinely reshaped and updated. Nonetheless, it is entirely possible that legislatures and judges could devise better legal heuristics. Indeed, we see the generative perfectionism of the common law as striving to achieve this ideal.
Our claim is therefore hardly that the heuristic function of the law's existing concepts is perfect; indeed it is far more modest. In keeping with Simon's idea of satisficing, we suggest that common law concepts constitute heuristics that allow individuals and courts to reach satisfactory, albeit at times imperfect, decisions. Common law concepts have survived the test of time. They embody centuries of legal experience and closely approximate the values of our society. Moreover, thanks to their unchanging jural meaning, they constitute clear guideposts for the individual members of our society. As far as courts are concerned, concepts contain the lore of multiple judicial decisions. Judges, when faced with a new case, frame the facts involved around the legal issues that they identify and for which the common law's conceptual machinery provides them with a useful and effective toolkit. The existence of these concepts not only ensures certainty and continuity in the law but also allows the system to operate efficiently. If judges had to approach every case afresh, without any judicial baselines or reference points, they would have to act not only as judges but also as legislators. Judges simply do not have the mental and material resources to perform this task. Such a system would also increase the number of appeals and require appellate courts to approach every case de novo. A major implication that therefore flows from our account is the recognition that normative proposals to reform and modify the law would do well to rely on the conceptual architecture of the law. (311)
It bears emphasizing that in claiming that legal concepts work as heuristic devices in legal reasoning, we should not be taken to suggest that concepts perform an exclusively instrumental role and are therefore not endowed with internal meaning of their own. Quite to the contrary, our claim here is that their very ability to function as heuristics derives in large part from their being endowed with their own meaning, as a result of which actors and judges use them to situate and ground their normative reasoning in the law. (312) Indeed our claim here is that the very jural meaning of legal concepts, which remain sufficiently stable over time, functions as a heuristic device that enables courts and litigants to rationalize the facts involved in their dispute into particular patterns and ideas, evaluate them, and undertake a process of reasoning and decisionmaking. The grounding effect of legal concepts as heuristic devices is therefore very much tied to the reality that they do embody their own discernible meaning.
Writing during the heyday of Legal Realism, the noted legal theorist Lon Fuller, himself a realist, cautioned scholars that the "crusade against" conceptual thinking in the law was going "too far." (313) Fuller's cautionary note seems to have had little influence on American common law thinking, where the use and analysis of legal concepts continues to be vilified. (314) Indeed, on occasion, even the justices of the U.S. Supreme Court have criticized conceptual thinking (or "conceptualism"), deriding it as "obsolete" (315) and "long ago discarded." (316) Much of this ire, we have sought to show, originates in a fundamental misunderstanding about the role of legal concepts in the common law.
As we have argued, admitting a role for concepts in legal reasoning and analysis does not collapse into a formalist enterprise, contrary to common understanding. By virtue of their "duality of meaning," legal concepts-- much like most other elements of legal reasoning--remain open to being infused with normative values and ideals from a wide range of disciplines, ideologies, and perspectives. All the same, this process does not drain them of all meaning, for they continue to embody at all times a core structural framework that gives them a determinate jural content across time, place, and context. We characterized the former as the concept's normative meaning, and the latter as its jural meaning. It is only when the two are seen as equally indispensable elements of a concept's "meaning" that the true role of legal concepts in the common law becomes apparent.
The duality of meaning that underlies legal concepts holds deep functional significance in the common law. As we have shown, it is entirely through the duality of meaning that the common law is able to maintain its delicate balance between stability and change. The jural meaning of concepts allows the common law's doctrinal content to remain relatively stable and unchanging over time, while their normative meaning allows it to affirm and endorse competing normative values, in the process enabling the common law to keep up with changing social preferences.
Indeed, a central element of our argument has been that understanding the common law's conceptual architecture is critical to appreciating not just how the common law works but, in addition, what the common law actually is. As a method (and body) of judge-made law, developed from the context of individual cases with uniquely different fact patterns and normative demands, the common law requires a textured approach to legal rules and reasoning that allows it to provide future actors with sufficient guidance and predictability, while at the same time decide the individual case at hand by reference to existing law. Legal concepts offer common law courts and judges an ideal mechanism by which to realize these twin goals without undermining the overall legitimacy of the legal system. It is in fact the common law's conceptual framework that is, in large part, responsible for its vitality as a method of lawmaking and legal reasoning for several centuries now.
The renowned common law theorist Sir Frederick Pollock famously tried to identify the "genius of the common law" in a series of lectures delivered at the turn of the century. (317) Pollock identified a host of characteristics that he believed explained the subsistence, expansion, and continuing vitality of the common law as a body of law. As a method of lawmaking and legal reasoning, though, the true genius of the common law is perhaps to be found in its undying commitment to its conceptual edifice, which has survived the test of time and outlived the diatribes of its critics. In the end, rather than representing a form of "transcendental nonsense," as Felix Cohen famously put it, legal concepts in the common law exhibit a lure, simplicity, and indefatigability that can be explained only by their "transcendent common sense."
(1) For a sample of the literature documenting this, see MORTON J. HORWITZ, THE Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy 200 (1992) ("Hostility to conceptualism was a hallmark of Legal Realist criticism."); BRIAN Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in JUDGING 59 (2010); Anthony Kronman, Jurisprudential Responses to Legal Realism, 73 CORNELL L. REV. 335, 335-36 (1988); Karl Llewellyn, A Realistic Jurisprudence--The Next Step, 30 COLUM. L. REV. 431, 447-48 (1930).
(2) As a perfect example, see Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 821 (1935) ("Legal concepts ... are supernatural entities which do not have a verifiable existence except to the eyes of faith."). For work contributing to this critique, see Richard A. Posner, Cardozo: A Study in Reputation 45 (1990) (describing Judge Cardozo's use of concepts as "bluff"); John Dewey, The Historic Background of Corporate Legal Personality, 35 YALE L.J. 655, 655 (1926).
(3) See Cohen, supra note 2, at 820; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1699 (1976).
(4) See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 270-71 (7th ed. 2007); George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J. LEGAL STUD. 65, 65 (1977); Paul H. Rubin, Why Is the Common Law Efficient?, 6 J. LEGAL STUD. 51, 53 (1977).
(5) See, e.g., WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT Law 14 (1987) (arguing that the very tort concept of "fault" has an "economic rationale" and that the "doctrinal structure" of tort law can be seen as economic); Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 32 (1972) (arguing that Learned Hand's formulation of the duty of care--the Hand Formula--was driven by economic considerations).
(6) See, e.g., ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995).
(7) See Robert S. Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought--A Synthesis and Critique of Our Dominant General Theory About Law and Its Use, 66 Cornell L. Rev. 861, 862-63 (1981).
(8) See, e.g., Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. l, 42-43 (1997).
(9) See Benjamin N. Cardozo, The Nature of the Judicial Process 150-51 (1921); Oliver Wendell Holmes, Jr., The Common Law 1-2 (Little, Brown & Co. 1923) (1881).
(10) O. W. Holmes, The Path of the Law, 10 HARV. L. Rev. 457, 469 (1897).
(11) Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 58 (1913).
(12) See, e.g., Norway Plains Co. v. Bos. & Me. R.R., 67 Mass. (1 Gray) 263, 267 (1854) (explaining that one of the great merits of the common law is that its structure relies on a few broad and comprehensive principles, as opposed to a series of detailed practical rules). For a discussion of rules and standards, see Ronald M. Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14, 29 (1967); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 621 (1992); and Kennedy, supra note 3, at 1776.
(13) See, e.g., W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. CAL. L. Rev. 671 (2008) (documenting the debate surrounding the concept); Dilan A. Esper & Gregory C. Keating, Abusing "Duty," 79 S. CAL. L. REV. 265, 282 (2006); John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733, 1829-30 (1998) (offering a relational conception of duty based on "relationships").
(14) See Hohfeld, supra note 11, at 30 (describing the jural structure of rights and duties as jural correlatives).
(15) See, e.g., JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A Pragmatist Approach to Legal Theory 22-23 (2001); Weinrib, supra note 6, at 123.
(16) See, e.g., Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 84-91 (1975); see also LANDES & POSNER, supra note 5, at 1.
(17) See, e.g., Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 900-01 (Cal. 1963) (en banc) (imposing strict liability on a manufacturer where it was in a better position to bear the costs of injuries than the people who were powerless to protect themselves).
(18) See, e.g., THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND Policies 1038-40 (2d ed. 2012).
(19) See, e.g., Gregory S. Alexander, Freedom, Coercion, and the Law of Servitudes, 73 CORNELL L. REV. 883, 890-91 (1988) (presenting the two sides of the "touch and concern" debate); Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1359-60 (1982) (arguing that the "touch and concern" requirement denies the original parties their contractual freedom); Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. CAL. L. REV. 1177, 1233 (1982) (finding that the "touch and concern" test is beneficial as it safeguards individual freedom as well as promotes efficiency).
(20) See, eg., Jeffrey E. Stake, Toward an Economic Understanding of Touch and Concern, 1988 DUKE L.J. 925, 930 (proposing that courts will "find that a covenant touches and concerns land when the benefit or burden at issue is more efficiently allocated to the successors than to the original parties to the covenant").
(21) See, eg., Carol M. Rose, Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants 19 (Ariz. Legal Studies Discussion Paper No. 13-21, 2013), available at http://ssrn.com/ abstract=2243028.
(22) See Restatement (Second) of Contracts [section] 205 (1981) ("Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement."); see also U.C.C. [section] 1-304 (2012) ("Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement." (alteration in original)).
(23) See, eg., Empire Gas Corp. v. Am. Bakeries Co., 840 F.2d 1333, 1339 (7th Cir. 1988) (calling the good faith requirement "a chameleon"); Victor P. Goldberg, Discretion in Long-Term Open Quantity Contracts: Reining in Good Faith, 35 U.C. DAVIS L. REV. 319, 348 (2002) (analyzing seven factually similar cases with divergent outcomes to demonstrate "the futility of relying on a good faith standard absent a coherent framework for understanding the transaction").
(24) See, e.g., Robert S. Summers, The General Duty of Good Faith--Its Recognition and Conceptualization, 67 CORNELL L. Rev. 810, 811 (1982) (arguing that "good faith" symbolizes a commitment to justice and contractual morality); Michael P. Van Alstine, Of Textualism, Party Autonomy, and Good Faith, 40 WM. & MARY L. Rev. 1223, 1225 (1999) (suggesting that the "good faith" requirement implicates "the role of the state in imposing minimal standards of honesty and fairness" in contractual dealings).
(25) See, e.g, Robert E. Scott & George G. Triantis, Anticipating Litigation in Contract Design, 115 YALE L.J. 814, 852-53 (2006) (describing the use of precise terms in loan agreements, such as "promise to insure," as proxies for good faith ex post).
(26) See generally Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. REV. 323 (2012) (arguing that reasonableness should be defined normatively, not positively or empirically).
(27) See, e.g, DEL. CODE ANN. tit. 8, [section] 102(b)(7) (2011) (preventing corporate charters from limiting the liability of directors for, among other things, violations of the common law duties of loyalty and good faith).
(28) See Richard A. Epstein, The Static Conception of the Common Law, 9 J. LEGAL STUD. 253, 256-65 (1980) (illustrating this reality using different doctrines in the areas of tort, contract, and property law).
(29) Joel Franklin Brenner, Nuisance Law and the Industrial Revolution, 3 J. LEGAL STUD. 403, 409 (1974).
(30) See id. at 405 ("All [a plaintiff] must show is that he has been injured by the defendant's conduct....").
(31) See id. at 409 (describing how the courts began to evaluate reasonableness "by striking a balance between [the plaintiff's] suffering and the general standard of amenity").
(32) See Dimmick v. Dimmick, 374 P.2d 824, 826 (Cal. 1962) (en banc) (analyzing the five conceptual elements); West v. Evans, 175 P.2d 219, 220 (Cal. 1946) (en banc) (same); Hacienda Ranch Homes, Inc. v. Superior Court, 131 Cal. Rptr. 3d 498, 500 (Cal. Ct. App. 2011) (same); see also Richard A. Epstein, Past and Future: The Temporal Dimension in the Law of Property, 64 WASH. U. L.Q. 667, 680 (1986) ("With adverse possession the requirements that possession be actual, open, notorious, continuous, hostile and under color of title are often read into statutes in order to flesh out their basic structure.").
(33) See, e.g., R.H. Helmholz, Adverse Possession and Subjective Intent, 61 WASH. U. L.Q. 331, 336 (1983) (finding that in the majority of cases, judges have not hesitated to look into the possessors state of mind and subjective intent); see also Walls v. Grohman, 337 S.E.2d 556, 562 (N.C. 1985) (overturning prior precedent that required a possessor to be a thief in order for the possession to be adverse); Epstein, supra note 32, at 687-89 (considering whether good faith possessors and bad faith possessors should be subject to different standards); Lee Anne Fennell, Efficient Trespass: The Case for "Bad Faith" Adverse Possession, 100 Nw. U. L. REV. 1037, 1039-40 (2006) (describing how courts overwhelmingly favor good faith possessors).
(34) See Chaplin v. Sanders, 676 P.2d 431, 435-36 (Wash. 1984) (en banc); Fennell, supra note 33, at 1059-60 (arguing that the true purpose of adverse possession is to move land into the hands of a "higher-valuing user").
(35) Compare Palsgraf v. Long Island R.R., 162 N.E. 99, 100-01 (N.Y. 1928) (finding that the injury was not foreseeable, and therefore the defendant had no duty), with id. at 103-05 (Andrews, J., dissenting) (arguing that the plaintiffs injury was proximately caused by the defendant); see also Patrick J. Kelley, Restating Duty, Breach, and Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law, 53 VAND. L. REV. 1039, 1063 (2001) ("The proximate cause issue ... focuses on the purpose, not the application, of the relevant community norm.").
(36) See John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 950 (2010) (describing different suggested normative orientations for duty doctrine).
(37) See Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1072-73, 1082 (D.C. Cir. 1970) (holding that there is an implied warranty of habitability in leases of urban dwelling units). See generally David A. Super, The Rise and Fall of the Implied Warranty of Habitability, 99 CALIF. L. REV. 389 (2011) (discussing the history and gradual weakening of the implied warranty of habitability doctrine).
(38) See Shyamkrishna Balganesh, Quasi-Property: Like, But Not Quite Property, 160 U. PA. L. REV. 1889, 1899-1900 (2012) [hereinafter Balganesh, Quasi-Property] (arguing that for quasi-property interests, the entitlement derives from the nature, context, and consequence of the parties' interactions).
(39) See, e.g., Fuller v. Marx, 724 F.2d 717, 719 (8th Cir. 1984) (holding that relatives of the deceased have a quasi-property right to the body); Louisville & Nashville R.R. Co. v. Wilson, 51 S.E. 24, 26 (Ga. 1905); O'Donnell v. Slack, 55 P. 906, 907 (Cal. 1899); Burney v. Children's Hosp. in Bos., 47 N.E. 401, 402 (Mass. 1897).
(40) See Int'l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) ("Regarding the news, ... it must be regarded as quasi property, irrespective of the rights of either as against the public.").
(41) See, e.g., FREDERICK SCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION TO Legal Reasoning 106 (2009); see also Cass R. Sunstein, One Case at a Time: Judicial Minimalism ON THE SUPREME Court 53 (1999); Richard A. Posner, Pragmatic Adjudication, 18 Cardozo L. Rev. 1, 5 (1996).
(42) Landes & Posner, supra note 5, at 24; Weinrib, supra note 6, at 19.
(43) See, e.g., Saul Levmore, Judging Deception, 74 U. CHI. L. REV. 1779, 1789-90 (2007) (suggesting that cases with different factual elements be decided with a "more general theory").
(44) Cohen, sufra note 2, at 809. Cohen's rhetoric was powerful enough that Hart too thought it necessary to refer to it in his seminal book. See H. L. A. HART, THE CONCEPT OF LAW 130 (3d ed. 2012).
(45) Cohen, supra note 2, at 821. For a comprehensive rejoinder to Cohen, discussed in more detail below, see Jeremy Waldron, "Transcendental Nonsense" and System in the Law, too COLUM. L. REV. 16 (2000).
(46) See Charles Lowell Barzun, Legal Rights and the Limits of Conceptual Analysis: A Case Study, 26 Ratio Juris 215, 215-16 (2013).
(47) For exemplary work contrary to this trend, see Goldberg & Zipursky, Torts as Wrongs, supra note 36; Henry E. Smith, On the Economy of Concepts in Property, 160 U. PA. L. REV. 2097 (2012); and Benjamin C. Zipursky, Pragmatic Conceptualism, 6 LEGAL THEORY 457 (2000).
(48) Judge Cardozo's judicial decisions and writings can be seen as an effort to refute the idea that any reliance on legal concepts entails a belief in the autonomy of law (i.e., in mechanical jurisprudence). For an excellent account, see John C.P. Goldberg, The Life of the Law, 51 STAN. L. REV. 1419, 1455-74 (1999) (book review).
(49) R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2 (1960). For a critique, see Thomas W. Merrill & Henry E. Smith, Essay, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 391 (2001) (referring to Coase's approach as one of "causal agnosticism").
(50) See generally Zechariah Chafee, Jr., Coming into Equity with Clean Hands, 47 MICH. L. Rev. 877 (1949).
(51) See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 22-26 (1977).
(52) A good example that Dworkin provides is the principle that "[n]o man may profit from his own wrong." Id. at 26.
(53) For a useful rejoinder to Dworkin, suggesting that legal principles are not very distinct from legal rules in practice as understood by positivism, see Joseph Raz, Legal Principles and the Limits of Law, 81 YALE L.J. 823 (1972). This debate is orthogonal to our analytical claims here and we therefore take no position on it.
(54) Dworkin recognizes this possibility himself. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 51, at 28. The use of "reasonableness" in the Sherman Act is a good example, where unreasonableness at first played the role of a background principle in light of the terse wording of the statute but, in due course, came to play a more direct role once courts developed the "rule of reason" approach to antitrust analysis. As the name indicates, in the "rule of the reason," the question of unreasonableness becomes part of the rule and is directly applied in the analysis. Here, we may legitimately say that it is a legal concept. See id. at 27-28.
(55) See Ronald Dworkin, Law's Empire 45-46 (1986).
(56) Id. at 47.
(57) Id. at 48.
(58) See generally Jules L. Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 YALE L.J. 1335 (1986); Timothy P. Terrell, "Property," "Due Processand the Distinction Between Definition and Theory in Legal Analysis, 70 GEO. L.J. 861 (1981); Peter Westen, "Freedom" and "Coercion"--Virtue Words and Vice Words, 1985 DUKE L.J. 541. We also see Zipursky implicitly adopting a similar distinction, though not explicitly. See Zipursky, supra note 47, 474-78.
(59) For an account of the semantic-pragmatic distinction, see Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV. 923, 987 (1996)
(60) See COLEMAN, supra note 15, at 7 (describing a similar process of using the inferential role of a concept to analyze a term as "inferential role semantics").
(61) See generally Joseph H. Beale, The Proximate Consequences of an Act, 33 HARV. L. REV. 633 (1920); Charles E. Carpenter, Workable Rules for Determining Proximate Cause, 20 CALIF. L. REV. 229 (1932); Henry W. Edgerton, Legal Cause, 72 U. PA. L. REV. 211 (1924); James Angeli McLaughlin, Proximate Cause, 39 HARV. L. REV. 149 (1925).
(62) See Beale, supra note 61, at 633.
(63) See generally LEON GREEN, RATIONALE OF PROXIMATE CAUSE (1927); Richard W. Wright, Causation in Tort Law, 73 CALIF. L. REV. 1735 (1985).
(64) See generally Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917); Hohfeld, supra note 11.
(65) See generally Albert Kocourek, The Hohfeld System of Fundamental Legal Concepts, 15 U. ILL. L. Rev. 24 (1920).
(66) Arthur L. Corbin, Jural Relations and Their Classification, 30 YALE L.J. 226, 235 (1921).
(67) For a similar point, see H. L. A. Hart, Scandinavian Realism, 1959 CAMBRIDGE L.J. 233, 237-38.
(68) Id. at 235.
(69) See generally Howard B. Abrams, Originality and Creativity in Copyright Law, 55 LAW & CONTEMP. PROBS. 3 (1992) (highlighting the serious repercussions attached to copyright law's definition of originality).
(70) See id. at 14.
(71) Id. at 14-15 (describing this as the "independent effort" or "independently originated" standards).
(72) See generally Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984) (describing conduct rules as rules designed to guide behavior and decision rules as rules directed to officials applying the law).
(73) Bernard Williams, Ethics and the Limits of Philosophy 140-44 (1985).
(74) See generally Simon Kirchin, Introduction: Thick and Thin Concepts (providing an example using the terms "good" and "honest" to describe the different degrees of thickness), in THICK CONCEPTS 1 (Simon Kirchin ed., 2013).
(75) See Samuel Scheffler, Morality Through Thick and Thin: A Critical Notice of Ethics and the Limits of Philosophy, 96 PHIL. REV. 411, 417-19 (1987) (book review) (reasoning that because our "ethical vocabulary is very rich and diverse," simply designating terms as thick or thin is an oversimplification).
(76) Waldron, supra note 45, at 19 & n.14.
(77) Id. at 47.
(78) See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 352 (1928) (Andrews, J., dissenting) ("What we do mean by the word 'proximate' is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.").
(79) See Hart, supra note 44, at 124.
(80) Frederick Schauer,.4 Critical Guide to Vehicles in the Park, 83 N.Y.U. L. REV. 1109, 1124 (2008).
(81) DWORKIN, Taking Rights Seriously, supra note 51, at 22 (using the term "furry edges" to describe Hart's theory).
(82) See Brian Bix, Law, Language, and Legal Determinacy 18 (1993) (describing the "need for judges in some cases to make 'a fresh choice between open alternatives'"); Schauer, supra note 8o, at 1125 (explaining how, with vague laws and multiple applications, judges are required to sometimes exercise discretion and apply extralegal factors to reach a decision).
(83) See Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 505-06 (1992) (linking proximate cause to outcome responsibility).
(84) Cf. Hart, supra note 67, at 235.
(85) See DWORKIN, Law's Empire, supra note 55, at 47 (describing how the interpretive attitude has two components, the first being an assumption about value, and the second that the rules and concepts are "sensitive to [the] point").
(86) See COLEMAN, supra note 15, at 9.
(87) But see Westen, supra note 58, at 544 (arguing that some concepts, such as "federal," are descriptive and neutral).
(88) For accounts of these distinctions, see HILARY PUTNAM, THE COLLAPSE OF THE FACT/VALUE DICHOTOMY AND Other Essays (2004); Ruth Anna Putnam, Creating Facts and Values, 60 PHIL. 187 (1985); W. V. Quine, Two Dogmas of Empiricism, 60 PHIL. REV. 20 (1951); Richard Swinburne, Analytic/Synthetic, 21 AM. PHIL. Q. 31 (1984); Friedrich Waismann, Analytic-Synthetic, 10 Analysis 25 (1949).
(89) See, e.g., Barzun, supra note 46, at 216 (explaining and critiquing how some theorists argue legal rights can be derived from purely conceptual claims and do not require any normative arguments).
(90) Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 Am. J. Juris. 17, 30-43 (2003).
(91) Id. at 34-35.
(92) See id. at 35 ("Moral values are those values that bear on the questions of practical reasonableness, e.g., questions about how one ought to live ... .").
(93) See Lawrence B. Solum, The Interpretation-Construction Distinction, 27 CONST. COMMENT. 95, 100-08 (2010) (highlighting the distinction between construction and interpretation and arguing that it is important for legal scholars to understand this "real and fundamental" distinction).
(94) Id. at 96.
(95) See HART, supra note 44, at 127; see also BIX, supra note 82, at 25-28; DWORKIN, TAKING Rights Seriously, supra note 51, at 17.
(96) Dworkin, Taking Rights Seriously, supra note 51, at 28-39.
(97) Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 VA. L. REV. 287, 303, 326 (2007) (describing this process as "radical semantic evolution").
(98) Id. at 331-36.
(99) See Joseph Raz, The Authority of Law: Essays on Law and Morality 218 (2d ed. 2009) ("[T]he law should be capable of providing effective guidance.").
(100) Id. at 214-15 ("Stability is essential if people are to be guided by law in their long-term decisions.").
(101) The idea was coined by Justice Antonin Scalia, see Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989), and is often associated with him, see HANOCH Dagan, Reconstructing American Legal Realism & Rethinking Private Law Theory 203 (2013).
(102) See DAGAN, supra note 101, at 203.
(103) See, e.g., Frank B. Cross, Identifying the Virtues of the Common Law, 15 SUP. CT. ECON. REV. 21, 58 (2007) (noting how the incrementalism of the common law appears to contribute to "legal predictability").
(104) See Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 356 (2006) ("Burkean minimalists believe that constitutional principles must be built incrementally and by analogy, with close reference to long-standing practices.").
(105) See generally P.S. ATIYAH, PRAGMATISM AND THEORY IN ENGLISH LAW (1987).
(106) See generally BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW (1924); CARDOZO, supra note 9.
(107) See generally HOLMES, supra note 9; Holmes, supra note 10.
(108) For an excellent recent account of the declaratory theory, see Allan Beever, The Declaratory Theory of Law, 33 OXFORD J. LEGAL STUD. 421 (2013).
(109) SUNSTEIN, supra note 41, at 5.
(110) Sunstein, Burkean Minimalism, supra note 104, at 353.
(111) Edmund Burke, Reflections on the Revolution in France, in THE PORTABLE EDMUND BURKE 416, 456 (Isaac Kramnick ed., 1999).
(112) HOLMES, supra note 9, at 1.
(113) See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 928 (2007) (Breyer, ]., dissenting).
(115) Id. (citation omitted).
(116) 159 N.E. 173 (N.Y. 1927).
(117) See Curtis Bridgeman, Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context, 39 U.C. DAVIS L. REV. 149, 150 (2005).
(118) See id.
(119) Alfred S. Konefsky, How to Read, or at Least Not Misread, Cardozo in the Allegheny College Case, 36 Buff. L. Rev. 645, 670 (1987).
(120) Bridgeman, supra note 117, at 183 n.170. The original characterization of Cardozo's jurisprudence as a whole derives from Goldberg, The Life of the Law, supra note 48, at 1462 ("Cardozo was a 'pragmatic conceptualist.'").
(121) See Allegheny Coll. v. Nat'l Chautauqua Cnty. Bank, 159 N.E. 173, 175 (N.Y. 1927).
(122) Id. at 175 (citation omitted).
(123) See Konefsky, supra note 119, at 647.
(124) For an excellent account of Cardozo's approach to legal analysis and his extensive reliance on legal concepts, see Goldberg, The Life of the Law, supra note 48, at 1452 (arguing that, to Cardozo, the job of the judge "was to understand, articulate, and apply--rather than to deconstruct or hide behind--the concepts embedded in law.").
(125) See supra Part I.
(126) See William O. Douglas, Stare Decisis, 49 COLUM. L. REV. 735, 735-36 (1949) ("Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare decisis serves to take the capricious element out of law and to give stability to a society.").
(127) For a good overview of good faith in contract law, see Summers, supra note 24; Robert S. Summers, "Good Faith" in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 VA. L. REV. 195 (1968).
(128) For an overview of the origins of good faith, see Alan D. Miller & Ronen Perry, Good Faith Performance, 98 IOWA L. REV. 689, 690-94 (2013).
(129) See, e.g., Kirke La Shelle Co. v. Paul Armstrong Co., 188 N.E. 163, 167 (N.Y. 1933) ("[I]n every contract there exists an implied covenant of good faith and fair dealing.").
(130) U.C.C. [section] 1-201(b)(20) (2012).
(131) See James J. White & Robert S. Summers, Uniform Commercial Code [section] 1-4, at 11 (6th ed. 2010).
(132) See Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CALIF. L. REV. 509, 512-14 (1994) (distinguishing between "vague," "ambiguous," and "contestable" expressions).
(133) See id. at 527.
(136) See id. at 537 ("[W]e must not make the mistake of assuming that the vagueness of natural language predicates matches our pragmatic uncertainty about what should be done in future or unanticipated cases.").
(137) See supra text accompanying notes 74-75.
(138) Waldron, supra note 132, at 528-29.
(139) For a discussion of common law doctrinal change, see Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601 (2001); Rubin, supra note 4.
(140) For a previous account of normative change, see Kraus, supra note 97, at 327.
(141) As an example, consider the emergence of contributory negligence doctrine in tort law. See Francis H. Bohlen, Contributory Negligence, 21 HARV. L. Rev. 233, 254 (1908) (discussing the origins of contributory negligence in nineteenth-century tort law); Wex S. Malone, The Formative Era of Contributory Negligence, 41 ILL. L. REV. 151, 154-55 (1946) (linking the sudden rise of contributory negligence to the rapid expansion of railroads and tort lawsuits against common carriers).
(142) Functional pluralism, as used here, should not be confused with its philosophical analog, an idea commonly associated with the work of Michael Lynch. See MICHAEL P. LYNCH, TRUE TO LIFE: WHY TRUTH Matters (2004) (developing a contextual theory of truth); Gila Sher, Functional Pluralism, 46 PHIL. BOOKS 311 (2005) (reviewing LYNCH, supra) (critiquing Michael Lynch's functional pluralist account of truth).
(143) For a prominent recent account of structural pluralism, see DAGAN, supra note 101, at 193-223; Hanoch Dagan, Pluralism and Perfectionism in Private Law, 112 COLUM. L. REV. 1409, 1421 (2012).
(144) See Dagan, supra note 143, at 1424.
(145) See supra text accompanying notes 141-142.
(146) See generally John P. S. McLaren, Nuisance Law and the Industrial Revolution--Some Lessons from Social History, 3 OXFORD J. LEGAL STUD. 155 (1983).
(147) See William L. Prosser, Nuisance Without Fault, 20 TEX. L. Rev. 399, 418-20 (1942).
(148) Brenner, supra note 29, at 410.
(150) See, e.g., Walter v. Selfe, (1851) 64 Eng. Rep. 849 (Ch.) 852; 4 De G. & Sm. 315, 322-24.
(151) (1858) 140 Eng. Rep. 1113 (C.P.) 1117; 4 C. B. N. S. 334, 342-43.
(152) Id. at 1114.
(155) Brenner, supra note 29, at 409, 411.
(156) Hole, 140 Eng. Rep. at 1114.
(157) See St. Helen's Smelting Co. v. Tipping, (1865) 11 Eng. Rep. (H.L.) 1483; 11 H.L.C. 642; Bamford v. Turnley, (1862) 122 Eng. Rep. 27 (Ex.); 3 B. & S. 66.
(158) See, e.g., Bamford, 122 Eng. Rep. at 30 ("It may be observed that ... there is a want of precision, especially in the words reasonable' and 'convenient,' which renders its meaning by no means clear.").
(159) See Joshua Getzler, A History of Water Rights at Common Law 129-40 (2004) (detailing the development of natural rights theory); MORTON J. HORWITZ, THE Transformation of American Law, 1780-1860, at 34-35 (1977) (explaining the natural flow theory in the United States).
(160) HORWITZ, supra note 159, at 35-40.
(161) See, e.g., Platt v. Johnson, 15 Johns. 213, 218-19 (N.Y. Sup. Ct. 1818); Palmer v. Mulligan, 3 Cai. 307, 314 (N.Y. Sup. Ct. 1805).
(162) See Joseph K. Angell, A Treatise on the Common Law, in Relation to WATER-COURSES 40-41 (1824) (describing these developments as "obviously unjust").
(163) 24 F. Cas. 472 (Story, Circuit Justice, D.R.I. 1827) (No. 14,312).
(164) HORWITZ, supra note 159, at 38 (emphasis added).
(165) See Tyler, 24 F. Cas. at 474.
(166) Id. (emphasis added).
(167) See GETZLER, supra note 159, at 275-76; HORWITZ, supra note 159, at 39; Carol M. Rose, Energy and Efficiency in the Realignment of Common-Law Water Rights, 19 J. LEGAL STUD. 261, 285-88 (1990).
(168) HORWITZ, supra note 159, at 39.
(169) For an excellent discussion of the jural moves here, see GETZLER, supra note 159, at 61-63.
(170) Id. at 62.
(171) Id. at 275.
(172) See Tyler v. Willkinson, 24 F. Cas. 472, 474 (Story, Circuit Justice, D.R.I. 1827) (No. 14, 312) (emphasizing the diminution in "value" of the right).
(173) For a particularly harsh criticism of multifactor tests and doctrines in the law, see RICHARD A. POSNER, Reflections ON Judging 262 (2013) ("[W]hen the factors are numerous, unweighted, and open-ended ..., a multifactor test is an invitation to the exercise of uncanalized discretionary authority.").
(174) See, e.g., Henry W. Ballantine, Title by Adverse Possession, 32 HARV. L. REV. 135, 135 (1918) ("Title by adverse possession sounds, at first blush, like title by theft or robbery, a primitive method of acquiring land without paying for it.").
(175) 16 Richard R. Powell, Powell on Real Property [section] 91.02 (Michael Allan Wolf ed., LexisNexis Matthew Bender 2014); THOMAS W. MERRILL & HENRY E. SMITH, THE Oxford Introductions to U.S. Law: Property 34-35 (2010); see also Henry Winthrop Ballantine, Claim of Title in Adverse Possession, 28 YALE L.J. 219, 219 (1919).
(176) 16 POWELL, supra note 175, [section][section] 91.02-.07.
(177) See Helmholz, supra note 33, at 337-341 (discussing the role of hostility and mistaken belief in the adverse possession analysis); William Sternberg, The Element of Hostility in Adverse Possession, 6 TEMPLE L.Q. 207, 207 (1931) (describing hostility as the "most frequently contested element of adverse possession").
(178) See Sternberg, supra note 177, at 215 (citing precedent from 1840 adopting a largely analogous view).
(179) This position came to be known as the Connecticut rule. See French v. Pearce, 8 Conn. 439, 445 (1831) ("The possession is not the less adverse, because the person possessed intentionally, though innocently. But in the moral nature of the act, there is undoubtedly a difference, when the possessor knowingly enters by wrong."). For further discussion, see Helmholz, supra note 33, at 337-49. For cases accepting this position, see Mannillo v. Gorski, 255 A.2d 258 (N.J. 1969); West v. Tilley, 306 N.Y.S.2d 591 (N.Y. App. Div. 1970); Brehm v. Johnson, 531 P.2d 991 (Colo. Ct. App. 1974).
(180) See, e.g., Eddings v. Black, 602 S.W.2d 353, 358 (Tex. Civ. App. 1980) (concluding that where claimant had knowledge of a prior claim (i.e., was not acting in good faith), the adverse possession claim was "wanting in intrinsic fairness").
(181) See Fennell, supra note 33, at 1059-60 (describing the true niche goal of adverse possession as "moving land into the hands of a (much) higher-valuing user, where ordinary markets cannot accomplish that task"). But see Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 GEO. L.J. 2419, 2435-36 (2001) (critiquing this rationale by discussing times when "productive use can be undesirable"); Thomas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79 Nw. U. L. REV. 1122, 1130-31 (1985) (offering a similar critique).
(182) This approach came to be known as the Maine rule. See Preble v. Maine Cent. R.R. Co., 27 A. 149, 150-51 (Me. 1893) ("It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines the question of disseisin."), overruled by Dombkowski v. Ferland, 893 A.2d 599 (Me. 2006); see also Sternberg, supra note 177, at 213-14 (discussing the early Maine rule, where "there can be no adverse possession when there is a mistaken belief of ownership"). For an argument that efficiency demands an adherence to this rule, see Fennell, supra note 33, at 1038-39.
(183) R.H. Helmholz, More on Subjective Intent: A Response to Professor Cunningham, 64 WASH. U. L.Q. 65, 83 (1986) (discussing how American courts have moved away from the bad faith requirement).
(184) See Chaplin v. Sanders, 676 P.2d 431, 435-36 (Wash. 1984) (en banc) (observing that the adverse possessor's "subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant to this determination"); 16 POWELL, supra note 175, [section] 91.05[a] (discussing the majority understanding of hostile as referring to actions and not intent).
(185) Chaplin, 676 P.2d at 436 ("The nature of his possession will be determined solely on the basis of the manner in which he treats the property.").
(186) 16 POWELL, supra note 175, [section] 91.03 ("[T]he claimant must use and possess the land to the same extent as a record owner would, in light of the property's particular attributes.").
(187) The clearest statement to this effect is to be found in a decision of the Supreme Court of Washington. See Chaplin, 676 P.2d at 435 ("The doctrine of adverse possession was formulated at law for the purpose of, among others, assuring maximum utilization of land, encouraging the rejection of stale claims and, most importantly, quieting titles.").
(188) See 17 U.S.C. [section] 107 (2012) ("[T]he fair use of a copyrighted work ... is not an infringement of copyright."). See generally WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN Copyright Law (1985).
(189) 17 U.S.C. [section] 107(1).
(190) Id. [section] 107(2) ("[T]he nature of the copyrighted work.").
(191) Id. [section] 107(3) ("[T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole.").
(192) Id. [section] 107(4).
(193) See Matthew Sag, The Prehistory of Fair Use, 76 BROOK. L. REV. 1371, 1379-87, 1393-1409 (2011) (arguing that the true origins of the doctrine can be traced back to common law and equity decisions in the period between 1741 and 1841).
(194) 9 F. Cas. 342 (Story, Circuit Justice, C.C.D. Mass 1841) (No. 4901); see also Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright, 118 YALE L.J. 186, 229-30 (2008) (discussing the impact of Folsom v. Marsh on copyright thinking). See generally L. Ray Patterson, Folsom v. Marsh and its Legacy, 5 J. INTELL. PROP. L. 431 (1998) (criticizing the decision in Folsom v. Marsh).
(195) H.R. REP. No. 94-1476, at 66 (1976).
(197) See Gideon Parchomovsky, Fair Use, Efficiency, and Corrective Justice, 3 LEGAL THEORY 347. 350-54 (1997)
(198) 464 U.S. 417 (1984), superseded on other grounds by statute, 17 U.S.C. [section] 1201 (2012).
(199) Id. at 451.
(200) 471 U.S. 539 (1985).
(201) Id. at 567.
(202) Id. at 566.
(203) See 17 U.S.C. [section] 107(4).
(204) Harper & Row, 471 U.S. at 566 n.9.
(205) See generally LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE in the Hybrid Economy (2008).
(206) 510 U.S. 569 (1994).
(207) Id. at 579.
(209) See C. Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891, 941 (2002) (associating transformativeness with free speech); Rebecca Tushnet, Essay, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535, 549-52 (2004) (discussing the connection between transformativeness and free speech).
(210) See generally Edward Rock & Michael Wachter, Dangerous Liaisons: Corporate Law, Trust Law, and Interdoctrinal Legal Transplants, 96 NW. U. L. REV. 651 (2002) (offering a critique of the interdoctrinal borrowing of concepts and rules); Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 MICH. L. REV. 459 (2010) (providing examples of interdoctrinal borrowing in the area of constitutional law).
(211) See Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. REV. 503, 508-11 (1982) (discussing this disparity).
(212) See, e.g., 2 POWELL, supra note 175, [section] 16B.01 (discussing the landlord-tenant revolution); Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 CORNELL L. Rev. 517, 545 (1984) (attributing the development of landlord-tenant law to societal forces aimed at improving the perceived inadequacies of housing law).
(213) See Super, supra note 37, at 451 (describing the events leading up to the development of the implied warranty of habitability); see also James Charles Smith, Tenant Remedies for Breach of Habitability: Tort Dimensions of a Contract Concept, 35 U. KAN. L. REV. 505, 534-46 (1987) (rooting the concept of habitability in tort law).
(214) 428 F.2d 1071, 1073 (D.C. Cir. 1970).
(215) Id. at 1077.
(216) Id. at 1080 (footnote omitted).
(217) See 2 POWELL, supra note 175, [section] 16B.04[a].
(218) Balganesh, Quasi-Property, supra note 38, at 1891.
(219) For a fuller account of the doctrine, see Shyamkrishna Balganesh, "Hot News": The Enduring Myth of Property in News, 111 COLUM. L. REV. 419 (2011) [hereinafter Balganesh, "Hot News"]
(220) 24s U.S. 215, 232 (1918).
(221) See Balganesh, "Hot News," supra note 219, at 429-38 (providing a historical account of the development of the "hot news" misappropriation doctrine).
(222) Id. at 438-56.
(223) International News Service, 248 U.S. at 236.
(224) Balganesh, Quasi-Property, supra note 38, at 1891.
(225) For a fuller discussion of this reality and the background conditions that motivated the Court's reasoning, see Balganesh, "Hot News," supra note 219, at 443-48.
(226) For an extended treatment, see Tanya K. Hernandez, The Property of Death, 60 U. PITT. L. REV. 971 (1999).
(227) See W. Page Keeton et al., Prosser and Keeton on the Law of Torts [section] 12, at 63 (5th ed. 1984).
(228) See, e.g., Fuller v. Marx, 724 F.2d 717, 719 (8th Cir. 1984) ("Under Arkansas law, the next of kin does have a quasi-property right in a dead body."); Cohen v. Groman Mortuary, Inc., 41 Cal. Rptr. 481, 483 (Dist. Ct. App. 1964) (recognizing the quasi-property right in a dead person's body "for the limited purpose of determining who shall have its custody for burial"); Burney v. Children's Hosp. in Bos., 47 N.E. 401, 402 (Mass. 1897) (recognizing a quasi-right of property in a dead body); Brown v. Maplewood Cemetery Ass'n, 89 N.W. 872, 879 (Minn. 1902) ("[W]hile a dead body is not property, in the strict sense of the common law, it is a quasi property...."); Hackett v. Hackett, 26 A. 42, 43 (R.I. 1893) (recognizing a widow had a quasi-property right in her dead husband's body).
(229) See, e.g., Hackett, 26. A. at 43 ("This is not a question of contract, nor of liability, but of sentiment and propriety."); Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 237-38 (1872) ("[T]here is no right of property in a dead body.... Yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property.").
(230) See Alan Brudner with Jennifer M. Nadler, The Unity of the Common LAW 48 (2d ed. 2013) ("The fragmentation of the common-law tradition has spawned a corresponding crisis in the intellectual endeavour to understand it.").
(231) See, e.g., John C.P. Goldberg, Introduction: Pragmatism and Private Law, 125 HARV. L. REV. 1640, 1641-42 (2012) (describing this trend as the emergence of "brass tacks" pragmatism).
(232) Dworkin put it best when he characterized followers of this approach as "nominalists." See Ronald M. Dworkin, Is Law a System of Rules?, in ESSAYS IN LEGAL PHILOSOPHY 25, 26-27 (Robert S. Summers ed., 1968); see also MORRIS R. COHEN, LAW AND THE SOCIAL ORDER: ESSAYS in Legal PHILOSOPHY 208-47 (1982) (discussing previous uses of the term "nominalism").
(233) See L. L. Fuller, American Legal Realism, 82 U. PA. L. REV. 429, 434 (1934).
(234) See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 27 (1930) (describing legal concepts as "weasel words").
(235) See W. Jonathan Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 VAND. L. Rev. 739, 740 (2005) ("Indeed, one torts professor teaches that foreseeability might as well be called 'strawberry shortcake,' having been bent, muddled, and co-opted to such a degree that it has lost any real meaning.").
(236) For an excellent discussion of these effects, see Fuller, supra note 233.
(237) These scholars are part of the "New Private Law" school of thought. Goldberg, Introduction: Pragmatism and Private Law, supra note 231, at 1640 n.1.
(238) Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 617-21 (1908).
(239) For an excellent account of Legal Realism and its influence on American legal theory, see Brian Leiter, American Legal Realism, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL Theory 50, 54-56 (Martin P. Golding & William A. Edmundson eds., 2005).
(240) See Fuller, supra note 233, at 443-47.
(241) William Twining, Karl Llewellyn and the Realist Movement 35-36 (2d ed. 2012).
(242) See TAMANAHA, supra note l, at 13-43 (arguing that "formalism" was almost entirely an imaginary movement set up by the Legal Realists to make their point). But see Alfred L. Brophy, Did Formalism Never Exist?, 92 TEX. L. REV. 383, 410 (2013) (reviewing TAMANAHA, supra note 1) (characterizing Brian Tamanaha's claims as "at best misleading; parts are outright wrong").
(243) See generally Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV. 827 (1988).
(244) See generally Stephen A. Smith, The Normativity of Private Law, 31 OXFORD J. LEGAL STUD. 215 (2011) (providing an account of the normative content of private law doctrine).
(245) See DWORKIN, LAW'S EMPIRE, supra note 55, at 228-38 (relating how judges build upon prior law to authors building upon the prior stories of other authors).
(246) But see Brian H. Bix, Law as an Autonomous Discipline (noting the realist critique that the law either could not or should not be formalist), in THE OXFORD HANDBOOK OF LEGAL STUDIES 975, 979 (Peter Cane & Mark Tushnet eds., 2003); Cohen, supra note 2, at 821 (arguing that formalist reasoning leads to nonsensical results).
(247) For the problems associated with common law rule development, see Frederick Schauer, Is the Common Law Law?, 77 CALIF. L. REV. 455, 458 (1989) (book review).
(248) See Fuller, supra note 233, at 447 ("We shall have gone a long way toward ending the controversy concerning 'nominalism' if we can secure recognition for the plain fact that the inner mental experience of the individual, however precious and ineffable it may be, is conceptuar.").
(249) Edward H. Levi, An Introduction to Legal Reasoning (1949).
(250) See id. at 5 ("Reasoning by example in the law is a key to many things.").
(251) Id. at 8.
(252) Id. at 8-9.
(253) See id. at 9. Indeed he even argues that when this happens, such concepts embody "no meaning." Id.
(254) See id. at 10-27; see also MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916).
(255) LEVI, supra note 249, at 24-27.
(256) Goldberg & Zipursky, The Moral of MacPherson, sufra note 13, at 1743 (arguing that the concept of the duty was at the core of the decision in MacPherson).
(257) For a useful summary, see Grant Lamond, Analogical Reasoning in the Common Law, 34 Oxford J. Legal Stud. 567 (2014).
(258) Indeed, Levi too seems to concede this point. See LEVI, supra note 249, at 8 ("If the society has begun to see certain significant similarities or differences, the comparison emerges with a word.").
(259) See TAMANAHA, supra note 1, at 13-24.
(260) See id. at 23-24.
(261) See id. at 41.
(262) Id. at 40.
(263) Int'l News Serv. v. Associated Press, 248 U.S. 215, 267 (1918) (Brandeis, J., dissenting).
(264) See, e.g., Dagan, supra note 143, at 1413.
(265) See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) ("[I]f the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.").
(266) See Richard W. Wright, Hand, Posner, and the Myth of the Hand Formula," 4 THEORETICAL INQUIRIES L. 145, 151-52 (2003) (recognizing that even in opinions that purport to apply the test, the actual reasoning or results are never based on the test itself); see also Ronald J. Allen & Ross M. Rosenberg, Legal Phenomena, Knowledge, and Theory: A Cautionary Tale of Hedgehogs and Foxes, 77 Chi.-KENT L. REV. 683, 699 (2002) ("Courts do not rely heavily on the Hand Formula....").
(267) See James Griffin, Incommensurability: What's the Problem? (discussing the various theoretical and colloquial ways that "incommensurability" is used), in INCOMMENSURABILITY, INCOMPARABIUTY, AND PRACTICAL REASON 35, 35 (Ruth Chang ed., 1997); Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 795-96 (1994) (positing a definition of incommensurability).
(268) Brett G. Scharffs, Adjudication and the Problems of Incommensurability, 42 WM. & MARY L. REV. 1367, 1410 (2001).
(269) See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 21 (1995) (noting the "ancient common-law reverence for the virtue of practical wisdom," which entails "a subtle and discriminating sense of how the (often conflicting) generalities of legal doctrine should be applied to concrete disputes"); Stephen R. Perry, Judicial Obligation, Precedent and the Common Law, 7 OXFORD J. LEGAL STUD. 215, 220-21 (1987) (investigating the nexus between practical reason and precedent).
(270) R. Jay Wallace, Practical Reason, STANFORD ENCYCLOPEDIA PHIL., http://plato.stanford.edu/entries/practical-reason/ (last updated Mar. 26, 2014), archived at http://perma.cc/D8P6-LP52.
(271) See generally NORMAN O. DAHL, PRACTICAL REASON, ARISTOTLE, AND WEAKNESS OF THE WILL (1984); M. T. Thornton, Aristotelian Practical Reason, 91 MIND 57 (1982).
(272) See David Wiggins, Incommensurability: Four Proposals, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, supra note 267, at 52, 61-62.
(273) See Elizabeth Anderson, Practical Reason and Incommensurable Goods, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, supra note 267, at 90, 91-95.
(274) Id. at 90.
(275) David Wiggins, Weakness of Will Commensurdbility, and the Objects of Deliberation and Desire, 79 Proc. Aristotelian Soc'y (n.s.) 251, 274 (1979) (emphasis added).
(276) Ruth Chang, Introduction to INCOMMENSURABILITY, INCOMPARABILITY, AND Practical Reason, supra note 267, at 1, 16.
(277) See Richard A. Posner, How Judges Think 230-31 (2008) (describing the inevitability of pragmatic adjudication among judges); Levmore, supra note 43, at 1793 (arguing that Posner the academic is theoretical, while Posner the judge is a "minimalist").
(278) See, e.g., ALLAN C. HUTCHINSON, EVOLUTION AND THE COMMON LAW 4 (2005); Hanoch Dagan, The Realist Conception of Law, 57 U. TORONTO L.J. 607, 637 (2007). See generally Amnon Reichman, The Dimensions of Law: Judicial Craft, Its Public Perception, and the Role of the Scholar, 95 CALIF. L. Rev. 1619 (2007); Brett G. Scharffs, Law as Craft, 54 VAND. L. REV. 2245 (2001).
(279) Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 214 (1960).
(280) Codes, and the Arrangement of the Law, 5 AM. L. REV. 1, 1 (1870), reprinted in Felix Frankfurter, The Early Writings of O. W. Holmes, Jr., 44 HARV. L. Rev. 717, 725 (1931).
(281) See generally Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883 (2006) (describing and critiquing the dialogic process); Emily Sherwin, Judges as Rulemakers, 73 U. CHI. L. REV. 919 (2006) (defending the dialogic process).
(282) Emily Sherwin, Common Law Reasoning and Cybertrespass, in INTELLECTUAL PROPERTY AND THE COMMON Law 252, 258 (Shyamkrishna Balganesh ed., 2013).
(284) 159 F.2d 169, 173 (2d Cir. 1947).
(285) For leading accounts, see Stephen G. Gilies, The Invisible Hand Formula, 80 VA. L. REV. 1015 (1994); Wright, supra note 266.
(286) Carroll Towing, 159 F.2d at 173.
(287) Id. (emphasis added).
(288) See Goldberg & Zipursky, The Moral o/MacPherson, supra note 13, at 1740-43 (identifying problems with the Holmes-Prosser paradigm of negligence liability). (289) Id. at 1753-61.
(290) See id. at 1740.
(291) See id. at 1741.
(293) See id. at 1742-43.
(294) John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 MD. L. REV. 364, 391-92 (2005). For other work in this vein, see John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 FORDHAM L. REV. 1563 (2006); Goldberg & Zipursky, Torts as Wrongs, supra note 36; and John C.P. Goldberg & Benjamin C. Zipursky, Tort Law and Moral Luck, 92 CORNELL L. REV. 1123 (2007).
(295) Goldberg & Zipursky, Accidents of the Great Society, supra note 294, at 392.
(296) See id. at 367.
(297) See Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849 (2007).
(298) Id. at 1850.
(299) See id.
(302) See id.
(303) See id. at 1871-84.
(304) See HERBERT A. SIMON, A Behavioral Model of Rational Choice (describing the implausibly rigorous cognitive demands of calculating the most rational choice), in MODELS OF MAN, SOCIAL AND RATIONAL: MATHEMATICAL ESSAYS ON RATIONAL HUMAN BEHAVIOR IN A SOCIAL Setting 241, 244-48 (5th prtg. 1967).
(305) See generally GERD GIGERENZER ET AL., SIMPLE HEURISTICS THAT MAKE US SMART (1999) (exploring the use of heuristics in a variety of contexts).
(306) See generally, e.g., Cass R. Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531 (2005) (providing examples of the use of heuristics to guide moral decisionmaking).
(307) See generally HEURISTICS AND THE LAW (Gerd Gigerenzer & Christoph Engel eds., 2006) (collecting literature on the use of heuristics in the law); MARK KELMAN, THE HEURISTICS DEBATE (2011) (discussing the legal implications of the debate between those who characterize heuristics as an error-producing form of bias and those who view them as a tool for fast and frugal decisionmaking).
(308) See generally, e.g., Russell Korobkin, The Problems with Heuristics for Law (noting that heuristics in the law may prevent actors from maximizing their utility or reduce the effectiveness of policy incentives), in HEURISTICS AND THE LAW, supra note 307, at 45.
(309) See generally Sunstein, Moral Heuristics, supra note 306. But see generally Jeffrey J. Rachlinksi, Heuristics, Biases, and Philosophy, 43 TULSA L. REV. 865 (2007) (critiquing Sunstein's arguments).
(310) SIMON, supra note 304, at 261 (distinguishing satisficing from optimizing and maximizing).
(311) This is not to say that all normative theories of the law must have a bottom-up structure in the sense that they must grow out of the common law concepts. It is equally possible to start with an abstract top-down theory, but at some point a normative theory should address how it is to be operationalized through the conceptual machinery of the law.
(312) For prior efforts to understand the role of concepts through the lens of heuristics and information-processing, see Smith, sufra note 47.
(313) Fuller, supra note 233, at 443.
(314) See, e.g., Jay M. Feinman, Un-Making Law: The Classical Revival in the Common Law, 28 SEATTLE U. L. Rev. 1, 55-56 (2004) (describing the classical revival of laws as a "conceptual regress").
(315) Snyder v. Harris, 394 U.S. 332, 354 (1969) (Fortas, J., dissenting).
(316) Hawkins v. United States, 358 U.S. 74, 81 (1958).
(317) See Frederick Pollock, The Genius of the Common Law (1912).
SHYAMKRISHNA BALGANESH ([dagger]) GIDEON PARCHOMOVSKY ([dagger])([dagger])
([dagger]) Professor of Law, University of Pennsylvania Law School.
([dagger][dagger]) Robert F. Fuller Professor of Law, University of Pennsylvania Law School.
Many thanks to Tom Baker, Mitch Berman, Sam Bray, Hanoch Dagan, Andrew Gold, John Goldberg, Larissa Katz, Leo Katz, Greg Keating, Seth Kreimer, Sophia Lee, Shahar Lifshitz, Serena Mayeri, Paul Miller, Edward Rock, Emily Sherwin, Henry Smith, Stephen Smith, Alex Stein, Ben Zipursky, and participants at the 2014 North American Workshop on Private Law Theory (NAWPLT) held at the Harvard Law School in October 2014 and the 2014 Penn Law Faculty Retreat. Michael van den Berg provided excellent research assistance. Responsibility for all errors remains with the authors.
Table 1: Comparing the Mechanisms of Change Interpretive Interconceptual Additive Change Change Change Method of Interpretation Salience Novel addition Change alteration Subtlety of Very subtle Less subtle and Overt Process somewhat direct Endurance of Subtlety risks Directness Most enduring Change short-lived ensures some since express change path dependence overruling required
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|Title Annotation:||II. Stability and Change in the Common Law B. Normative Change in the Common Law 2. Interconceptual Change through Conclusion, with footnotes, p. 1281-1310|
|Author:||Balganesh, Shyamkrishna; Parchomovsky, Gideon|
|Publication:||University of Pennsylvania Law Review|
|Date:||Apr 1, 2015|
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