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    Yale Law Journal: Volume 121, Number 1 - October 2011
    Yale Law Journal: Volume 121, Number 1 - October 2011
    Yale Law Journal: Volume 121, Number 1 - October 2011
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    Yale Law Journal: Volume 121, Number 1 - October 2011

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    Yale Law Journal: Volume 121, Number 1 - October 2011:

    One of the world's leading law journals is available in quality ebook formats for ereader devices and apps. This issue of The Yale Law Journal (the first issue of Volume 121, academic year 2011-2012) features articles and essays on jurisprudence, tort law, and other areas of interest. Contributors include such noted scholars as Jules Coleman, Ariel Porat, and Mark Geistfeld. The issue also features student contributions on counter-terrorism and on felon disenfranchisement.

    Ebook formatting includes linked notes and an active Table of Contents.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateApr 18, 2014
    ISBN9781610279635
    Yale Law Journal: Volume 121, Number 1 - October 2011
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      OCTOBER 2011

      VOLUME 121, NUMBER 1

      Smashwords edition: published by Quid Pro Books, at Smashwords. Copyright © 2011 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

      The publisher of various editions and formats is The Yale Law Journal, who exclusively authorized Quid Pro to digitally publish its issues in ebook editions; so published, for The Yale Law Journal, by Quid Pro Books. Available in major digital formats and at leading ebook retailers and booksellers.

      Quid Pro Books

      Quid Pro, LLC

      5860 Citrus Blvd., suite D-101

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      Cataloging for Volume 121, Number 1 – October 2011:

      ISBN: 1610279638 (ePub)

      ISBN-13: 9781610279635 (ePub)

      CONTENTS

      ARTICLE

      THE ARCHITECT OF JURISPRUDENCE

      By Jules L. Coleman

      (121 YALE L.J. 2)

      Colloquy: (Mis)Aligning Accident Law

      EDITORS’ NOTE

      ARTICLE

      MISALIGNMENTS IN TORT LAW

      By Ariel Porat

      (121 YALE L.J. 82)

      ESSAY

      THE PRINCIPLE OF MISALIGNMENT: DUTY, DAMAGES, AND THE NATURE OF TORT LIABILITY

      By Mark A. Geistfeld

      (121 YALE L.J. 142)

      NOTE

      THE OTHER SIDE OF RICHARDSON V. RAMIREZ: A TEXTUAL CHALLENGE TO FELON DISENFRANCHISEMENT

      By Abigail M. Hinchcliff

      (121 YALE L.J. 194)

      COMMENT

      DISAGGREGATING LEGAL STRATEGIES IN THE WAR ON TERROR

      By Michael J. Ellis

      (121 YALE L.J. 237)

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to The Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to The Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 121 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. Dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Manager.

      SINGLE AND BACK ISSUES. Each issue of Volume 121 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc. for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. Dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-120, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org/).

      MANUSCRIPTS. The Journal invites the submission of unsolicited articles, essays, and book reviews. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2011 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com/.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Richard Charles Levin, B.A., B.Litt., Ph.D., President of the University

      Peter Salovey, A.B., M.A., Ph.D., Provost of the University

      Robert C. Post, A.B., J.D., Ph.D., Dean

      Douglas Kysar, B.A., J.D., Deputy Dean

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian

      Megan A. Barnett, B.A., J.D., Associate Dean

      Sharon C. Brooks, B.A., J.D., Assistant Dean

      Toni Hahn Davis, B.A., J.D., M.S.W., LL.M., Associate Dean

      Brent Dickman, B.B.A., M.B.A., Associate Dean

      Mark LaFontaine, B.A., J.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, B.A., M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      †  Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      Anne L. Alstott, A.B., J.D., Professor of Law

      ‡  Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, B.A., J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, A.B., J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Barton Beebe, B.A., Ph.D., J.D., Anne Urowsky Visiting Professor of Law (fall term)

      Raymond Brescia, B.A., J.D., Visiting Clinical Associate Professor of Law

      Lea Brilmayer, B.A., J.D., LL.M., Howard M. Holtzmann Professor of International Law

      †  Richard R.W. Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law

      ‡  Robert A. Burt, B.A., M.A., J.D., Alexander M. Bickel Professor of Law

      Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡  Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      ‡  Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Jules L. Coleman, B.A., M.S.L., Ph.D., Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Hanoch Dagan, LL.B., LL.M., J.S.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona Doherty, B.A., J.D., Visiting Clinical Associate Professor of Law

      ‡  Steven Barry Duke, B.S., J.D., LL.M., Professor of Law

      †  Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      ‡  William N. Eskridge, Jr., B.A., M.A., J.D., John A. Garver Professor of Jurisprudence

      *   Daniel C. Esty, A.B., M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Stanley Fish, B.A., M.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡  James Forman Jr., A.B., J.D., Clinical Professor of Law

      Bryan Garsten, B.A., M.Phil., Ph.D., Professor (Adjunct) of Law (spring term)

      Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      ‡  Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (spring term)

      Lani Guinier, B.A., J.D., Visiting Professor of Law (fall term)

      ‡  Henry B. Hansmann, A.B., J.D., Ph.D., Augustus E. Lines Professor of Law

      Robert D. Harrison, B.A., J.D., Ph.D., Lecturer in Legal Method

      Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Kristin Henning, B.A., J.D., LL.M., Sidley Austin-Robert D. McLean ’70 Visiting Clinical Professor of Law (spring term)

      Daniel E. Ho, B.A., A.M., Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Christine Jolls, B.A., J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      *   Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law

      Paul W. Kahn, B.A., J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities, and Director, Orville H. Schell, Jr. Center for International Human Rights

      Pamela S. Karlan, B.A., J.D., Visiting Professor of Law (fall term)

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Daniel Kevles, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Alvin K. Klevorick, B.A., M.A., Ph.D., John Thomas Smith Professor of Law and Professor of Economics

      *   Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law

      *   Anthony Townsend Kronman, B.A., J.D., Ph.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law

      John H. Langbein, A.B., LL.B., Ph.D., Sterling Professor of Law and Legal History

      Sanford Levinson, B.A., Ph.D., J.D., Visiting Professor of Law (fall term)

      *   Yair Listokin, A.B., M.A., Ph.D., J.D., Associate Professor of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Miguel Maduro, Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      †  Daniel Markovits, B.A., M.Sc., D.Phil., J.D., Professor of Law

      ‡  Jerry Louis Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law

      Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Samuel Moyn, B.A., M.A., Ph.D., J.D., Irving S. Ribicoff Visiting Professor of Law (spring term)

      Nicholas Parrillo, A.B., M.A., J.D., Associate Professor of Law

      †  Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      †  Claire Priest, B.A., J.D., Ph.D., Professor of Law

      ‡  George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

      Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law

      Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      †  Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law

      †  Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)

      Scott J. Shapiro, B.A., J.D., Ph.D., Professor of Law and Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      †  Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor of Emeritus of Law

      Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Gerald Torres, A.B., J.D., LL.M., Maurice R. Greenberg Visiting Professor of Law (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      Ralph Karl Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law

      Michael J. Wishnie, B.A., J.D., Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization

      †  John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      *   On leave of absence, 2010–2011.

      †  On leave of absence, fall term, 2010–2011.

      ‡  On leave of absence, spring term, 2011.

      LECTURERS IN LAW

      John C. Balzano, B.A., M.A., J.D.

      Nicholas Bramble, B.A., M.A., J.D.

      Adam S. Cohen, A.B., J.D.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Lucas Guttentag, A.B., J.D.

      Jamie P. Horsley, M.A., J.D.

      Katherine Kennedy, A.B., J.D., Timothy B. Atkeson Environmental Lecturer in Law

      Theresa J. Lee, B.A., M.A., J.D.

      Jeffrey M. Prescott, B.A., J.D., (on leave)

      Jamin Raskin, B.A., J.D.

      Sia Sanneh, B.A., M.A., J.D.

      Daniel Wade, B.A., M.A., M.Div., M.S., J.D.

      VISITING LECTURERS IN LAW

      Josh Abramowitz, B.A., J.D.

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Stephen Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      G. Eric Brunstad, Jr., B.A., J.D., LL.M.

      Cynthia Carr, B.A., J.D., LL.M.

      Brett Cohen, B.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Eugene Garver, A.B., Ph.D.

      Nancy Gertner, B.A., M.A., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow and Visiting Lecturer in Law

      Benjamin Heineman, B.A., B.Litt., J.D.

      Howard Kahn, A.B., Ph.D.

      Brett M. Kavanaugh, B.A., J.D.

      Mark R. Kravitz, B.A., J.D.

      Daryl J. Levinson, A.B., M.A., J.D.

      Barbara Marcus, B.A., M.S., Ph.D.

      Braxton McKee, M.D.

      Andrew J. Pincus, B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      John M. Samuels, B.A., J.D., LL.M.

      David A. Schultz, B.A., M.A., J.D.

      Michael Solender, B.A., J.D.

      Ko-Yung Tung, B.A., J.D.

      Stefan Underhill, B.A., J.D.

      Neil Walker, LL.B., Ph.D.

      John M. Walker, Jr., B.A., J.D.

      The Yale Law Journal would like to thank Jean Russo for her sixteen years of dedicated service as Business Manager.

      THE YALE LAW JOURNAL

      VOLUME 121

      THE YALE LAW JOURNAL

      VOLUME 121

      The Architecture of Jurisprudence

      JULES L. COLEMAN

      [CITE AS 121 YALE L.J. 2 (2011)]

      ABSTRACT. Contemporary jurisprudence has been dominated by an unhelpful interest in taxonomy. A conventional wisdom has grown up around these projects. This Article, the first in a three-part series, identifies two dominant claims of this conventional wisdom in jurisprudence—one substantive, the other methodological—and argues that both are deeply mistaken and must be discarded. Rather than construct a new taxonomy founded on different claims, this Article casts aside the taxonomical projects of jurisprudence in favor of a project of reconceptualizing jurisprudence in terms of a set of basic problems. In order to identify the fundamental problems of jurisprudence and to make progress on their resolution, an architectural framework for the field is required. Freed from the burdens of the conventional wisdom, the Article turns to putting in place a solid foundation on which a new architecture of jurisprudence can be erected and points both to the fundamental problems of jurisprudence and the direction in which progress on their resolution is likely to be found.

      AUTHOR. Wesley Newcomb Hohfeld Professor of Jurisprudence, Yale Law School; Professor of Philosophy, Yale University; Distinguished Scholar in Residence, University of Miami; Ph.D., The Rockefeller University; M.S.L., Yale Law School. I want to thank my Yale Law Journal editor Robert Leider, Scott Hershovitz, Jody Kraus, Gabe Mendlow, David Plunkett, Alex Sarch, Scott Shapiro, and especially Ori Simchen for extraordinarily valuable comments. I am especially grateful to H.L.A. Hart, whose personal endorsement of my work gave me the confidence I needed to pursue my interests in jurisprudence; to Ronald Dworkin, whose lectures at Rockefeller when I was a graduate student were the original source of those interests and whose philosophical creativity, originality, and breadth have been a constant source of awe; and above all others, to Joseph Raz, whose scholarly and personal integrity have set the benchmark that—much to my chagrin—I have often failed to meet. If I have made a contribution to jurisprudence, it is because I have lived and worked in the midst of these giants of the field, who have taken an interest in my work (even if only, in some cases, to criticize it), and also because I have been fortunate to teach in the incomparable environment of the Yale Law School. At Yale, I have been blessed by wonderful students whose love and respect for law and philosophy have spurred me and, more importantly, one another.

      ARTICLE CONTENTS

      INTRODUCTION

      I. THE CONVENTIONAL WISDOM AND THE SEPARABILITY THESIS

      A.  Its Place in the Conventional Wisdom

      B.  Its Claims

      1.  The Coherence of Immoral Law

      2.  The Existence Conditions of Law

      II. ASSESSING THE CONVENTIONAL WISDOM: THE SEPARABILITY THESIS

      A.  Is the Separability Thesis Adequate To Distinguish Positivism from Natural Law? The Possibility of Immoral Law

      1.  Making Sense

      2.  A Revisionist Concept

      3.  A Methodological Suggestion

      4.  Legality as a Normative Notion

      B.  The Internal Point of View and the Law’s Point of View

      1.  Adopting the Law’s Point of View

      2.  The Internal Point of View and the Law’s Point of View

      C.  Is the Separability Thesis Adequate To Distinguish Positivism from Natural Law? The Existence Conditions of a Legal System

      D.  Is the Separability Thesis Essential to Legal Positivism?

      III. THE METHODOLOGY OF JURISPRUDENCE

      A.  In What Sense Is Normative Jurisprudence Normative?

      B.  Do Substantive and Methodological Jurisprudential Views ‘Travel Together’?

      IV. THE TRUTH ABOUT POSITIVISM AND THE SEPARABILITY THESIS

      A.  Judges Are People Too

      B.  Morality and Law’s Place

      C.  From Law to Positivism About Law

      D.  Extending the Argument

      V. WHAT ABOUT INCLUSIVE LEGAL POSITIVISM?

      A.  Exclusive Positivism and Natural Law: Redux

      B.  Exclusive and Inclusive Legal Positivism: Redux

      1.  The Argument for Inclusive Positivism

      2.  The Argument Against Exclusive Positivism

      VI. IT IS ABOUT THE METAPHYSICS—MAYBE

      A.  Meet the New Boss, Same as the Old Boss!

      B.  There Is Something Happening Here!

      C.  A Brand New Day

      1.  Semantics and Meta-Semantics

      2.  It Is Always About Everything—All the Way Down

      VII. A NEW BEGINNING

      A.  Legal Content and Legal Semantics

      B.  Hume’s Problem

      C.  Directives and Reasons

      D.  Law’s Place

      INTRODUCTION

      Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed.

      This Article does just that. It characterizes two central tenets of the conventional wisdom in jurisprudence and argues that both must be discarded if progress in jurisprudence is to be made. Having discarded both tenets of conventional wisdom, the Article then demonstrates the progress that can be made and indicates the direction in which prospects for further progress have been enhanced.¹ We begin by loosening the grip of conventional wisdom.

      I. THE CONVENTIONAL WISDOM AND THE SEPARABILITY THESIS

      A.  Its Place in the Conventional Wisdom

      Though most academic lawyers are unschooled in the finer points of contemporary jurisprudence, nearly all are confident of their ability to distinguish legal positivism from natural law theory. They tell us that natural lawyers assert and positivists deny the existence of necessary connections between law and morality; that positivists endorse and natural lawyers reject what I have termed ‘the separability thesis’.² Academic lawyers may even tell us that legal positivism is defined by its commitment to the separability thesis and natural law by its rejection of it. Finally, they may say that, among positivists, there has been no more ardent proponent of the separability thesis than H.L.A. Hart.

      There is a difference between the claim that the separability thesis is compatible with legal positivism and the claim that it is essential to it. Claims are compatible if they all can be true at the same time, and they are incompatible otherwise. In contrast, were the separability thesis essential to legal positivism, then it would have to be true were positivism true.

      The separability thesis would suffice to distinguish legal positivism from natural law theory were it compatible with one of them—positivism—but not the other—natural law theory. Thus, the separability thesis need not be essential to legal positivism in order for it to distinguish positivism from natural law theory.

      At the same time, the separability thesis could be essential to legal positivism yet fail to distinguish positivism from natural law theory. Depending on how all these views are to be formulated precisely, the separability thesis might turn out to be compatible with natural law theory despite being essential to positivism. In that case, its being essential to legal positivism would not be enough to distinguish legal positivism from natural law theory.³

      Taken together, these considerations demonstrate that the conventional wisdom regarding the separability thesis actually consists in the conjunction of three related but nevertheless quite distinct claims. The first is that the separability thesis is essential to legal positivism. The second is that the separability thesis distinguishes legal positivism from natural law theory. The third is that the separability thesis distinguishes legal positivism from natural law theory because it is both essential to legal positivism and incompatible with natural law theory. Together, these claims comprise the conventional wisdom regarding the place of the separability thesis in jurisprudence. This much is conventional. Whether it is wisdom is an entirely different matter.

      B.  Its Claims

      1.  The Coherence of Immoral Law

      In order to assess the conventional wisdom, we need first to settle on an interpretation of the separability thesis. Unfortunately, this is easier said than done—a striking fact given how influential the separability thesis has been. Part—though not all—of the problem is that whereas the separability thesis is often taken to be a claim about the conditions of legal validity—that is, the conditions that must be satisfied in order for a norm to count as among a community’s laws—it has also been taken to be a claim about the existence conditions of legal systems—that is, the conditions that must be satisfied in order for a system of rules (or norms) regulating affairs to count as a legal system.⁴ The greater part of the problem is that in both cases, the claim that the thesis makes is open to several different and by no means equally plausible interpretations, few of which have been explicitly articulated and fewer still adequately defended.

      The truth is that positivists have no one to blame but themselves for much of the confusion that has grown up around the separability thesis. In many ways, the main culprit may well be H.L.A. Hart, no doubt the most prominent positivist of the modern era who, as Leslie Green has correctly observed, endorsed a particularly broad interpretation of it.⁵

      Though Green is right both to attribute to Hart a promiscuous interpretation of the separability thesis and to criticize him for it, there is no question that Hart emphasized a much narrower formulation of the separability thesis owed originally to Austin. As Austin put it, The existence of law is one thing; its merit or demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.⁶

      The claim that the ‘law is one thing, its merit or demerit another’ calls attention to the fact that valid laws can be either morally estimable or reprehensible: their moral character neither settles their legal status nor is settled by it. Neither natural lawyers nor legal positivists dispute the latter claim, so the focus of the dispute has been on whether the morality of a norm settles, in whole or in part, the legal validity of a norm. The view typically associated with natural law theory is that even if the morality of a norm is not sufficient to establish its legal validity, a norm cannot count as law unless it meets an appropriate moral test—unless, that is, it satisfies (or at least is not incompatible with) relevant moral demands. The standard way to put this is to say that, for the natural lawyer, morality is a necessary condition of legal validity. Positivists reject this claim, and in so doing, they endorse the separability thesis—the claim that morality is not a necessary condition of legal validity.

      All this should be familiar enough, but even so, some slight but important modifications of the standard formulation of the separability thesis are required. The phrase ‘conditions of legal validity’ is so common and so much a part of jurisprudential discourse that it is easy to miss that the concept of legal validity is itself probably an artifact of jurisprudential theories and not a feature of law that such theories must explain or accommodate.⁷ The concept of legal validity does not figure prominently, if at all, in many jurisprudential theories—Ronald Dworkin’s most notable among them.⁸

      It is an important but overlooked point that it is sometimes difficult to distinguish concepts that are essential to legal practice—and thus which call for explanation—from those concepts that are theoretical constructs employed to help us explain legal practice. Fortunately, we do not have to settle the general matter here, nor even must we determine the category to which the concept of ‘legal validity’ belongs. It is enough for our purposes that we are able to reformulate the separability thesis in a way that does not invoke the concept of legal validity (so as not to beg any questions against views that do not avail themselves of it) while capturing the gist of the disagreement about its truth.

      Instead of formulating the separability thesis as a claim about the conditions of legal validity, we might express it in either of the following ways:

      (a) The concept of immoral law is coherent; or

      (b) Sentences asserting that a particular legal requirement or directive is immoral do not—for that reason alone—constitute contradictions.

      Again, the conventional wisdom is that natural law rejects the separability thesis, which means that it rejects (a) and (b). Thus, natural law must endorse either (most likely both) of the following:

      (c) The concept of immoral law is incoherent; or

      (d) Sentences asserting the existence of particular immoral legal directives or requirements—for that reason alone—constitute contradictions.

      Thus, as a claim about laws, the separability thesis is best represented as either (a) or (b), and if the conventional wisdom is sound, that means that positivism endorses either (most likely both) (a) or (b), whereas natural law endorses either (and most likely both) (c) or (d).⁹

      2.  The Existence Conditions of Law

      As I noted, the separability thesis is often associated with a claim about the existence conditions for legal systems, and not exclusively with a claim about the conditions of legal validity. On this way of understanding it, the separability thesis is the claim that, whatever other constraints legal systems must satisfy, moral constraints are not among those conditions. There are, in other words, no necessary moral constraints on the existence of a legal system or on the possibility of governance by law.

      The idea that there are or could be moral constraints on the existence of legal systems can be understood in a variety of ways. For example, one idea would be that no scheme of governance could count as a legal system unless it had or pursued a moral aim. Another might be that no scheme of governance could count as law unless it had ‘minimal’ moral content, constituted a legitimate authority, or claimed to constitute such an authority. Shifting gears, another set of ideas might express the demand that no system of regulating human affairs could count as law unless its demands generally met the requirements of morality, its characteristic modes of lawmaking comported with moral demands, or its distinctive mode of governance embodied or expressed certain moral virtues or values. All of these formulations express moral constraints on the existence of legal systems.

      While not denying that any or all of these constraints would render governance by law desirable, (the conventional wisdom has it that) positivism holds that no such constraints must be satisfied in order for a system of regulating human affairs to constitute a legal system. At the same time it attributes to the natural lawyer not just the view that legal systems that satisfy these constraints are desirable for their doing so, but that their doing so is necessary to their counting as legal systems. Because satisfying some or other such constraint is distinctive of law as a form of governance, the natural lawyer must reject the separability thesis that the positivist is committed to endorsing—or so conventional wisdom has it.¹⁰

      We have now distinguished between the separability thesis as a claim about laws and as a claim about the existence conditions of legal systems (or the possibility conditions of governance by law). As a claim about laws, the separability thesis holds that the concept of immoral law is coherent; as a claim about the existence conditions of legal systems, it holds that there are no moral constraints that a scheme of governance must satisfy in order to count as a legal system. We turn now to assessing whether, conceived in any of these ways, the separability thesis is up to the task that conventional wisdom has set for it. We begin with the separability thesis as a claim about laws and thus with the assertion that the concept of immoral law is coherent.

      II. ASSESSING THE CONVENTIONAL WISDOM: THE SEPARABILITY THESIS

      A.  Is the Separability Thesis Adequate To Distinguish Positivism from Natural Law? The Possibility of Immoral Law

      As I noted at the outset, the separability thesis would suffice to distinguish legal positivism from natural law were it compatible with the former and incompatible with the latter (or vice versa). We therefore set aside for the moment the question of whether the separability thesis is essential to legal positivism and ask first whether it is compatible with legal positivism but not with natural law theory. Thus, we have to answer two questions: (1) Is the separability thesis compatible with legal positivism? (2) Is the separability thesis incompatible with natural law theory?

      The separability thesis (as a claim about laws and not about legal systems) asserts that the concept of immoral laws is coherent (or that sentences expressing the existence of immoral laws are not contradictory). If the morality of a norm neither settles its legal status nor is settled by it, then it is possible for there to be legal norms that are not moral, just as there

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