Legal Theory Lexicon

Legal Theory Lexicon 090: Adjudicative Facts versus Legislative Facts

Introduction

Facts are important to the outcome of legal disputes.  One of the things that law students may notice is that there are different kinds of factual disputes that arise in legal proceedings.  Some factual disputes are about events, occurrences, and transactions that are relevant to the particular dispute--the civil action or the criminal prosecution.  Other facts are more general and bear on questions about what the law is or should be--and not what happened in a particular case.  The distinction between these two kinds of facts is sometimes marked by using the labels "adjudicative facts" and "legislative facts."  This entry in the Legal Theory Lexicon provides a brief introduction to that idea.

Origins of the Distinction in Administrative Law

The use of the terms "adjudicative facts" and "legislative facts" is strongly associated with a 1942 article by Kenneth Culp Davis, the author of a famous treatise on administrative law.  Here is Culp's discussion of the distinction:

Through adjudication administrative agencies create law and determine policy, as well as make findings which concern only the parties to the specific case. Creation of law and determination of policy usually do not rest upon uninformed a priori judgments having only an ethical or a logical basis. Frequently agencies' choices of law or policy must depend on fact-finding. But the fact-finding process for such purposes is different from the process of finding facts which concern only the parties to a particular case and calls for different rules of evidence.

When an agency finds facts concerning immediate parties — what the parties did, what the circumstances were, what the background conditions were — the agency is performing an adjudicative function, and the facts may conveniently be called adjudicative facts. When an agency wrestles with a question of law or policy, it is acting legislatively, just as judges have created the common law through judicial legislation, and the facts which inform its legislative judgment may conveniently be denominated legislative facts. The distinction is important; the traditional rules of evidence are designed for adjudicative facts, and unnecessary confusion results from attempting to apply the traditional rules to legislative facts.

Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 402–03 (1942).

Davis makes the important point that adjudicative factfinding is governed by the rules of evidence--a formal system that governs the admissibility of evidence and by associated procedures for the questioning of witnesses and and the presentation of documentary and physical evidence.  But these rules are not observed in factfinding processes associated with lawmaking.  Congressional hearings and factfinding by administrative agencies are not governed by the rules of evidence.  Scientific evidence is introduced at trial via expert witnesses, but legislative and administrative factfinding can proceed in much less formal ways.

Constitutional Facts

David modeled his notion of legislative facts on the already-existing category of constitutional facts.  Such fact may be developed as part of the record at trial, but as Professor Davis notes in his article, such facts are frequently brought before a court by briefs that cite research that is published in scientific journals or monographs.  Such facts are outside the record and do not fit within the traditional categories of facts of which judges may take "judicial notice.'

Constitutional facts become important when courts apply tests that involve the scrutiny of means ends relationships and assessment of the importance of goals pursued by legislation or executive action.  For example, the strict scrutiny test requires a compelling state interesting and demonstration that the means employed by government action are necessary to achieve such ends.  The importance of ends and the fit between ends and means frequently depend on empirical questions--hence the need for constitutional factfinding.

Deference to Extrajudicial Findings of Legislative Facts

When courts assess legislative facts, they may need to take into account factfinding that has already been done by a legislature, executive official, or a regulatory agency.  This raises questions about "deference."  Should a court defer to factfinding done by the legislative or executive branch?  And what sort of deference is appropriate?  Rational basis review usually involves considerable deference.  At one extreme, the courts may defer to a legislature so long as the legislature could rationally have found facts that supported its decision, even if the legislature did not actually engage in factfinding and even if the great weight of the evidence does not support a legislative fact that is required for legislation to be upheld.  But if the standard of review is strict scrutiny, courts may give legislative factfinding no deference at all, striking down legislation if the court's view of the facts does not support legislative or executive action.

Legislative Facts and the Role of Judges

The importance of legislative facts may be related to conceptions of the proper role of judges.  For example, formalist may believe that constitutional and statutory interpretation should largely be driven by the "meaning" or communicative content of the text.  In the realm of common law, the formalist approach emphasizes adherence to precedent.  On the formalist conception of the judicial role, judges do not make law, minimizing the need for legislative factfinding by judges.  Realist or instrumentalist theories of judging are different: they do not draw a sharp line between law making and law application.  If the role of judges is to make policy, then judges may need to engage in substantial legislative factfinding.  In particular, the application of "balancing tests" may require judges to engage in legislative factfinding in order to determine the weight of the various interests to be balanced.

Conclusion

There is much more to be said about the distinction between adjudicative facts and legislative facts, but I hope that this Lexicon entry provides you with a sense of the conceptual content of the distinction and its implications.

Bibliography

• Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364 (1942).
• Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169 (2001).
• Brianne J. Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 Duke L.J. 1 (2011).

Related Lexicon Entries

• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 024: Balancing Tests
• Legal Theory Lexicon 043: Formalism and Instrumentalism

(First posted on October 16, 2022.)

Legal Theory Lexicon 089: Inference to the Best Explanation (Abduction)

Introduction

Early in the first year of law school, students are likely to realize that facts are crucially important.   But the law school curriculum is designed so as to make the process of legal factfinding almost invisible.  The traditional first year courses focus on appellate cases and legal norms.  The facts are givens.  The standards of appellate review largely insulate factfinding by trial courts from examination by appellate courts.  And casebooks focus on legal rules and largely exclude cases that focus on the factfinding process.  The primary law school course that focuses on factfinding is Evidence, but in many versions that course, the emphasis on questions about the admissibility of evidence on not the processes by which juries and judges move from evidence to findings of fact.

Facts are important in trials and regulatory proceedings, but they are also important in the lawmaking processes that occur in legislatures and in common law courts.  Sometimes we call the facts that are found in trial courts "adjudicative facts" and the facts that are used in lawmaking "legislative facts."  A similarly phrase is used to describe the facts that are used in the development of constitutional doctrines; these facts are sometimes called "constitutional facts."

So perhaps it is no surprise that most law students have never thought seriously about the logical structure of the factfinding process.  My sense is that most students have a basic familiarity with the distinction between deductive and inductive arguments, but I would guess that many (or perhaps almost all) law students are unfamiliar with the idea of "interference to the best explanation" or "abduction."  Indeed, at this point many readers might assume that this Lexicon entry is going to address an obscure topic that is only of interest to legal theorists: after all, how important could inference to the best explanation be, if law students, lawyers, and judges have never heard of it.  But in fact, factual arguments based on inference to the best explanation are ubiquitous in the law.  Knowing something about they way such arguments work can be eye opening and extremely useful.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory. 

Deduction, Induction, and Abduction

The first step in understanding inference to the best explanation is to distinguish it from two other forms of argument, "deduction" and "induction."  Almost every law student has a basic understanding of deductive arguments.  A deductive argument is valid if the truth of its premises guarantee the truth of the conclusion; deductive arguments are sound if their logical structure is valid and their premises are true.  Thus, "All dogs are mammals.  All mammals are animals.  Therefore, all dogs are animals." is both sound and valid.

Good inductive arguments do not guarantee the truth of the conclusion; instead, inductive arguments provide some degree of support for their conclusions.  Here is an example:

• Every crow in a sample of one thousand crows is black.  This supports the conclusion that all crows are black.

An entire field of legal study, "Empirical Legal Studies," is devoted to what we are calling "inductive arguments."

Unlike deductive arguments, arguments based on inference to the best explanation do not guarantee the truth of their conclusions.  Unlike inductive arguments, inference to the best explanation does not depend on generalization from many instances (or samples).  An argument from inference to the best explanation frequently moves from one fact (which might be an event or occurrence) to a conclusion on the basis that the conclusion is the best explanation for the fact that provides the premise for the argument.  This may sound very abstract, but the idea is simple and intuitive in the context of specific examples.

Examples of Inference to the Best Explanation

The best way to understanding inference to the best explanation is via examples.  Here are a few:

• Helberta wakes up in the morning and goes into the kitchen.  The beans for coffee have been ground and placed in the filter bag in the coffee maker.  Helberta is positive that they did not do this last night.  The best explanation for this state of affairs is that Helberta's partner Gertruda set up the coffee the prior evening.
• Walter is found dead from a gunshot wound inflicted by a 45 calibre bullet.  The day before, Graham and Walter had a violent argument during which Graham threatened to kill Walter.  Graham owns a 45 calibre revolver and cannot account for his actions during the time period during which the shooting must have occurred.  The best explanation for these circumstances is that Graham shot Walter.
• You are walking on the beach and see the following letters in sand: "L i f e  i s  b e a u t i f u l."  It is is possible that the letters were caused by random wave action, but the best explanation is that another person drew the letters in the sand.

None of these examples involve inductive or deductive arguments.  In each of the examples, it is logically possible that your conclusion is false.  If you doubt this, consider the following additions to the examples:

• After Helberta sips her coffee, her sister Alberta comes into the room, surprising Helberta.  Alberta says, "Sorry to scare you.  I arrived late last night and Gertruda let me in.  I got the coffee ready."
• After the police investigate Walter's shooting, they discover that Alice, Walter's wife had learned about the argument between Walter and Graham, had access to Graham's revolver, and was furious at Walter because they had learned that Walter had been sleeping with another woman.
• After you see the writing on beach, you come across a boy and their dog.  The boy says, "Spot, write 'hello'!" and remarkably, the dog traces the letters "H e l l o" in the sand and these letters are similar in width and shape to the letters you saw earlier.

Arguments from an inference to the best explanation do not guarantee the truth of their conclusions, even when they make the conclusion seem very likely.  Given new and different facts to be explained, the process of inference to the best explanation can lead to a different conclusion.

Inference to the Best Explanation in the Law

Inferences to the best explanation ubiquitous in the law.  The idea of "circumstantial evidence" is based on inference to the best explanation.  When someone says "the evidence is only circumstantial" they are point out the possibility that the inference to the best explanation does not guarantee the truth of the conclusion.  But inference to the best explanation operates in the context of non-circumstantial evidence as well.  Suppose that there is an eyewitness to a shooting (Helena) and that the Helena testifies at trial that Roberta was the shooter.  The fact to be explained is Helena's testimony.  If we believe her, it is because we believe that the best explanation for her having testified that Roberta was the shooter is that Roberta did in fact do the shooting, that Helena witnesses the shooting, and that Helena is now truthfully recounting what she saw.  Of course, there are other explanations, and there is empirical evidence that eyewitness identifications of strangers are frequently wrong.  More generally, inference from the testimony of witnesses to the facts about which they testify all depend on inferences to the best explanations.

The role of inference to the best explanation is not limited to factfinding at trial.  The factual predicates for policy arguments may be based on inferences to the best explanation.  And many doctrinal arguments about legal content use inference to the best explanation as well: the courts in cases X, Y, and Z, made decisions A, B, and C, and the best explanation for this patter of decisions is that the courts were implicitly following legal norm P.

Once you start looking for arguments from the best explanation in law, you will find them everywhere.

Inference from the Best Explanation and Behavior Economics

Just because inference to the best explanation is ubiquitous does not mean that it is unproblematic.  Human psychology influences which inferences are seen as best, but the psychological mechanisms may be biased or flaw.  Behavioral economics, which is grounded in psychology, identifies various heuristics that may result in inferences to the best explanation that are, in fact, invalid.  For example, it may be the case that there is a tendency to prefer simple explanations over complex ones, but that the simplicity of an explanation is not a good predictor of its accuracy.

Conclusion

This Lexicon entry aims to introduce the idea of abduction or inference to the best explanation.  The bibliography provides some references for additional reading and legal applications.  There is much more to be said about this topic, but I hope that I have provided enough background to get you started.

Related Lexicon Entries

• Legal Theory Lexicon 054: Standards of Review

Bibliography

• James Hawthorne, Inductive Logic, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/logic-inductive/ (2018).
• Igor Douven, Abduction, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/abduction/ (2017).
• Harman, G., 1965. “The Inference to the Best Explanation,” Philosophical Review, 74: 88–95.
• Craig R. Callen, Spotting A Preponderance of the Evidence in the Wild: Inference to the Best Explanation and Sufficiency of the Evidence, 48 Seton Hall L. Rev. 1517 (2018).
• Ronald J. Allen & Alex Stein, Evidence, Probability, and the Burden of Proof, 55 Ariz. L. Rev. 557 (2013).
• Peter Lipton, Inference to the Best Explanation (2d ed. 2004).

(Last revised on ≈.)

Legal Theory Lexicon 088: The Construction Zone

Introduction

Law students quickly learn that many legal texts are vague or open-textured.  Words like "reasonable" and phrases like "freedom of speech" may not provide bright-line rules for their application.  This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation rules (the legal doctrines that courts use to apply the text to particular cases).  If we distinguish between "interpretation" (which discovers meaning) and "construction" (which determines legal effect, we can call these zones of underdeterminacy "construction zones."

This entry in the Legal Theory Lexicon provides a short introduction to the idea of a "construction zone."  As always, the Lexicon is aimed at students, especially first-year law students, with an interest in legal theory.

The Interpretation-Construction Distinction

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett.

Underdeterminacy

The idea of "underdeterminacy" is best explained by comparison with two contrasting ideas, "determinacy" and "indeterminacy."  A legal text is "indeterminate" if it provides no guidance at all, permitting judges reach any result they wish.  A legal text is "determinate" if it fully determines application.  "Underdeterminacy" applies when a legal text is consistent with more than one outcome, but rules out other outcomes.  In other words, a legal text is underdeterminate with respect to the legal rules that implement that text if and only if it allows for some possible rules but rules out others.

Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase "freedom of speech" underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase "freedom of speech" does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

There are many reasons for the underdeterminacy of legal texts.  Here is a brief catalog:

Vagueness and Open Texture: Some legal texts are vague because they create borderline cases: for example, the word "tall" is vague, because there is no bright-line between persons who are tall and those who are not.  Other texts include "open textured" provisions.  Typically, an open-textured legal rule has a core of determinate application and an equally determinate core of nonapplication, but creates a set of cases where the rule may or may not apply.  H.L.A. Hart used the term "penumbra" to designate this set of cases.

Irreducible Ambiguity: Many words and phrases are ambiguous: they have more than one meaning.  "Bank" can refer to a financial institution or the soil that adjoins a river.  Usually, we can resolve ambiguity by context, but some terms may be irreducibly ambiguous.  For example, a legislature may decide to use ambiguous language if a compromise cannot be reached on some issue: this kind of ambiguity "kicks the can down the road," creating a construction zone to be resolved by judges or officials at some future date.

Gaps:  Some legal texts may contain "gaps."  For example, a statute may create a legal question but provide no legal rule to govern that question.  The resulting "gap" creates a construction zone.

Contradictions:  Complex statutes sometimes contain contradictions, provisions that conflict with each other.  Again, the contradictory provisions create a construction zone, where the resolution of the conflict must be done by officials or courts when they implement the statute.

When a legal text is vague, open-textured, irreducibly ambiguous, has gaps, or contains contradictions, it creates a "construction zone."  The legal effect of the constitutional clause, statutory provisions, or contract clause will underdetermine its legal effect.  In this zone of underdeterminacy, construction will be required to determine legal content and application to particular cases.  In other words, underdeterminacy creates construction zones.

Interpretation Zone versus Construction Zone

Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The "interpretation zone" is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute's legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

Methods of Construction

Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provides methods for choosing implementation rules.

There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.

Conclusion

The idea of a construction zone is a powerful tool for analyzing questions about the interpretation and construction of legal texts.  I hope that this entry in the Legal Theory Lexicon has provided a basic introduction to this idea and the complementary notion of an interpretation zone.

Related Lexicon Entries

• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 050: Default Rules and Completeness
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 079: Communicative Content and Legal Content

Bibliography

• Jack Balkin, Living Originalism (Harvard University Press 2011).
• Randy E. Barnett, Restoring the Lost Constitution: The Presumptions of Liberty (Princeton University Press 2003).
• Randy E. Barnett, Interpretation and Construction, 34 Harvard Journal of Law and Public (2011).
• Lawrence Solum, The Interpretation-Construction Distinction, 27 Constitutional Commentary 95 (2010 ).
• Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (New ed. University Press of Kansas 2001).
• Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard University Press 2001).

(Last updated on October 2, 2022.)

Legal Theory Lexicon 087: Soft Law

Introduction

The first year curriculum in the United States focuses on domestic private law (property, torts, contracts), civil procedure, and constitutional law, with the possibility of a course on legislation and regulation or an elective outside the core common law subjects.  International law is rarely studied in the first year.  So, many first-year law students may complete the year without having heard of "soft law," which implicitly is defined as contrasting with "hard law."  Here is a representative definition that assumes the international law context:

By “soft law” I am referring to quasi-legal instruments that have no legal force, such as non-binding resolutions, declarations, and guidelines created by governments and private organizations. (Druzin, 2017)

The idea of soft law can easily be extended to domestic contexts.  This entry in the Legal Theory Lexicon provides an introduction to the idea of soft law aimed at law students, especially first-year law students with an interest in legal theory.

Hard Law

The notion of "soft law" is implicitly defined by contrast with "hard law."  Hard law is binding and enforceable.  In the international contrast, treaty obligations and the binding enactment of international organizations created by treaties would be hard law.  In the domestic sphere, hard law is the system of binding legal norms, including criminal law, tort law, constitutional law, and so forth.

What makes "hard" law hard?  That is a deep question that connects with disputes about the nature of law: explored in Legal Theory Lexicon 065: The Nature of Law.  One possible answer is that a hard law must be properly enacted or recognized by the relevant rule of recognition (a social rule that specifies what counts as a law and what does not) and be properly connected to some form of state-imposed sanction or reward.  There are deep waters here, but we will work with that definition for the remainder of this Lexicon entry.

Soft Law

If hard law is properly enacted and backed by sanctions or rewards, then what is soft law?  "Soft law" must share something with "law": at a minimum soft law must contain a norm the content of which has the action guiding function of hard law.  And soft laws also appear to be things that are enacted or promulgated in some way.  Thus, it common to include in the category of "soft law" things like "non-binding resolutions, declarations, and guidelines created by governments and private organizations." (Druzin, 2017)  In other words, soft-laws are things with content that would be hard law if it had been enacted by a process that would have conferred legal status and if it had included some sanction or reward.

This definition of "soft law" is incomplete.  If I right a set of guidelines for fossil fuel companies, it does not become "soft law."  Implicitly, the category is limited to norms (rules, standards, or other kinds of norms) that are effective.  Guidelines that achieve some threshold level of compliance may properly characterized be as "soft law," but guidelines that are have not effect on behavior are not.  A full and complete definition would also need to differentiate the category of "soft law" from related notions such as "custom" or "social norms," but at this point, we will bracket these additional questions.

Soft Law in International Law

The term "soft law" seems to have originated in the field of international law and it is applied to resolutions of the United Nations General Assembly and the action plans or recommendations generated by the various organs of the United Nations and other international organizations.

Why is soft law created?  And why does soft law sometimes succeed in changing behavior?  These are big questions, but here are some ideas for starting to think about answers.  Soft law may be created because it is not feasible to create hard law.  This might happen in the course of treaty negotiations: if a hard law treaty is impossible, the negotiating parties might turn to soft law as a less than ideal option that is "better than nothing."

Even if soft law is not backed by sanctions or rewards, it might nonetheless affect behavior.  Soft law might act like informal social norms and create social pressures for compliance.  Violations of soft law may be criticized and result in various soft pressures, such as refusals to cooperate with the violators of soft law norms.

Another mechanism for cooperation may involve what are called "networking effects."  Soft law may provide a mechanism for the coordination of behavior.  If the benefits of coordination depend on the number of cooperators, the soft law norm may be adopted voluntarily.  Here is an example from international shipping:

Soft-law documents such as BIMCO bills of lading, standard-form charter-parties, and the York-Antwerp Rules 2004 on General Average have self-standardized as de facto industry standards. This process of self-standardization may occur with respect to instruments at all levels of interaction. The soft-law document need only provide a focal point for actors within a network seeking to co-ordinate. International bill of lading and charter-party forms, couched in universal terms and practices widespread throughout the shipping world, do not require any formal legal codification precisely because—and this is a crucial point—they are already robustly supported by network-effect pressures. (Druzin, 2017) 

Conclusion

There are many more questions that could be asked about the idea of soft law.  Does it make sense to use the word "law" when we refer to "soft law"?  Or is the terminology misleading?  What are the costs and benefits of soft law approaches as compared to hard law?  I hope this Legal Theory Lexicon entry has provided you with the tools to understand and recognize the concept of soft law.

Bibliography

• Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (2d ed. 2015).
• Bryan H. Druzin, Why does Soft Law Have any Power Anyway?, 7 Asian Journal of International Law, 361–378 ((2017).
• Gregory C. Shaffer and Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in
  International Governance, 94 Minnesota Law Review 706 (2010).

Related Lexicon Entries

• Legal Theory Lexicon 026: Rules, Standards, Principles, Catalogs, and Discretion
• Legal Theory Lexicon 038: The Internal Point of View
• Legal Theory Lexicon 065: The Nature of Law,

(Last revised on September 24, 2022.)