Legal Theory

ISSN: 1352-3252

9 found

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  1.  6
    Legal Proof Should Be Justified Belief of Guilt.Mario Günther - 2024 - Legal Theory 30 (3):129-141.
    This article argues that legal proof should be tantamount to justified belief of guilt. A defendant should be found guilty just in case it is justified to believe that the defendant is guilty. My notion of justified belief implies a threshold view on which justified belief requires high credence, but mere statistical evidence does not give rise to justified belief.
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  2.  12
    Resolving Peer Disagreement about the Law.Alexander Houghton - 2024 - Legal Theory 30 (3):142-169.
    Legal experts—lawyers, judges, and academics—typically resist changing their beliefs about what the law is or requires when they encounter disagreement from those committed to different jurisprudential or interpretive theories. William Baude and Ryan Doerfler are among the most prominent proponents of this view, holding it because fundamental differences in methodological commitments severs epistemic peerhood. This dominant approach to disagreement, and Baude and Doerfler’s rationale, are both wrong. The latter is committed to an overly stringent account of epistemic peerhood that dogmatically (...)
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  3.  2
    Derivative Recognition and Intersystemic Interpretation.Nina Varsava - 2024 - Legal Theory 30 (3):170-197.
    In intersystemic cases, a court applies the law of a foreign system. Scholars have argued that the court ought to use the interpretive methodology of the foreign system’s courts. I argue against that intuitive position. First, interpretive methodology is not bound up with primary rights and duties such that it constitutes substantive law for conflict of laws purposes. Second, although interpretive methodology has epistemic value and may affect case outcomes, a given methodology might not have the same epistemic value or (...)
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  4.  3
    Leveling Down Legal Resources: Why Epistemic Arguments Fail.Amin Ebrahimi Afrouzi - 2024 - Legal Theory 30 (2):71-82.
    The rich evade conviction more often in criminal trials than the poor. They also win more often in civil cases against the poor. Given that money buys better lawyers and better lawyers are instrumental in winning in adversarial trials, the rich have a structural advantage in laissez-faire trial systems. Such inequality is concerning. In a landmark article, Alan Wertheimer argues that we should level down legal resources in civil cases on the basis that doing so increases the adversarial system’s accuracy—that (...)
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  5. Composing Thoughts: Free Speech and the Importance of Thinking Aloud in Music and Images.Léa Salje & Robert Mark Simpson - 2024 - Legal Theory 30 (2).
    Why should musical compositions and artistic images be included among the types of expression covered by free speech principles? One way to answer this question is to show how expression in nonverbal media can be functionally similar to other types of verbal expression. But this leaves us with an intuitively unsatisfying explanation of why free speech principles cover nonverbal creative expression that does not functionally emulate literal speech. In this article, as an alternative justification, we develop and defend the idea (...)
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  6.  9
    The Three-Verdict Problem.Jack H. L. Whiteley - 2024 - Legal Theory 30 (2):105-127.
    In Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict (...)
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  7.  10
    The problem of complex legislation.Lisa Burton Crawford - 2024 - Legal Theory 30 (1):1-21.
    It has long been said that legislation ought to be knowable: accessible, comprehensible, and so forth. This is often described as an essential element of the rule of law. But in many legal systems, legislation has become so voluminous and complex that few people know its content. Rather than admit that the rule of law has been compromised, some scholars take legislative complexity as a provocation to rethink what the rule of law requires—and conclude that, for various reasons, the rule (...)
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  8.  12
    Contract as Vow or Oath.Ethan J. Leib - 2024 - Legal Theory 30 (1):22-44.
    Many scholars and judges attempt to harmonize legal practices of contracting with the social practice of promising in ordinary life. This article explores an alternative genealogy of contract in traditional social practices that track many of contract's core norms: taking vows and oaths. Without denying that promissory morality infiltrates modern contract, contract-as-vow-or-oath can expose by way of a supplementary account why some contract rules work as they do and can take some pressure off of a more unitary promissory theory in (...)
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  9.  9
    Beyond Legislative Intent.Barbara Baum Levenbook - 2024 - Legal Theory 30 (1):45-70.
    There is a widely held view that legislative intention determines the meaning of a statute. The focus of this article is meaning in the sense of full linguistic content, which may not be the same as legal content. Linguistic intentionalism appears to have its greatest appeal when a statute has a partly implied linguistic meaning. It seems natural to suppose that the part of the meaning that is implied by the explicit wording in the statute is determined by an intention (...)
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