Michael S Green
College of William and Mary, Law, Faculty Member
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The unprovided-for case is a puzzle that arises under governmental interest analysis, the predominant choice-of-law approach in the United States. As its name suggests, in the unprovided-for case the law of no jurisdiction seems to apply.... more
The unprovided-for case is a puzzle that arises under governmental interest analysis, the predominant choice-of-law approach in the United States. As its name suggests, in the unprovided-for case the law of no jurisdiction seems to apply. There is a gap in the law. After its discovery by Brainerd Currie in the 1950s, the unprovided-for case proved to be an embarrassment for interest analysts and a focal point for critics. In 1989, however, Larry Kramer published an argument that the unprovided-for case is a myth. There is no gap in the law. Kramer’s argument has been well-received, so much so that discussion of the unprovided-for case has receded among advocates and critics of interest analysis alike. But the myth is a myth. What Kramer actually shows is not that preexisting law always applies in the unprovided-for case, but that regulatory policies can always be found to recommend law to fill the gap that the unprovided-for case creates. These policies are reasons for laws. They ar...
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The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can... more
The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.
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This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an... more
This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro's planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro's criticism of Hart, as it stands, is incomplete. Careful attention to Hart's notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon.
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Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts... more
Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community's law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense that it precedes the communities to which it applies. In this law's light, the legal effects of communities’ law practices are legally coordinated (or, at the very least, can be shown to legally conflict). Although interest in, and even commitment to, a noncommunitarian law of jurisdiction has receded among private international law theorists, I argue th...
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In this review essay, I argue that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law... more
In this review essay, I argue that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in "Justice in Robes," his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.
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A revolution (in the legal sense of the term) occurs when chains of legal dependence rupture - causing one legal system to be replaced by a different and incommensurable legal system. For example, before the French Revolution chains of... more
A revolution (in the legal sense of the term) occurs when chains of legal dependence rupture - causing one legal system to be replaced by a different and incommensurable legal system. For example, before the French Revolution chains of legal dependence ultimately led to Louis XVI, but after this revolution they led to the National Assembly (or the people of France it represented). The very possibility of revolutions depends upon laws being structured into legal systems in this fashion. And yet, despite substantial academic interest in revolutions, there has been a reluctance to examine the structure that makes them possible. The goal of this Article is to begin to fill this gap by examining six mistakes in reasoning about revolutions that occur when the structure of legal systems is ignored. My discussion focuses on concrete examples of these mistakes, drawn from a wide variety of sources, including the writings of Akhil Amar, the Supreme Court of Pakistan's 1958 decision in Sta...
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Abstract: A state's legal rules have extrajurisdictional effect if they are intended to be used in other court systems. Extrajurisdictional effect is puzzling because, absent certification, the courts of the state whose rules are at... more
Abstract: A state's legal rules have extrajurisdictional effect if they are intended to be used in other court systems. Extrajurisdictional effect is puzzling because, absent certification, the courts of the state whose rules are at issue have no occasion to discuss it. They have ...
Page 1. Electronic copy available at: http://ssrn.com/abstract=1792525 Law School ERIE'SSUPPRESSED PREMISE Michael Steven Green William & Mary Law School ... 3/22/2011 10:17 AM 1111 Article Erie's Suppressed Premise Michael... more
Page 1. Electronic copy available at: http://ssrn.com/abstract=1792525 Law School ERIE'SSUPPRESSED PREMISE Michael Steven Green William & Mary Law School ... 3/22/2011 10:17 AM 1111 Article Erie's Suppressed Premise Michael Steven Green† ...