
Published online:
20 May 2021
Published in print:
13 November 2020
Online ISBN:
9780226726380
Print ISBN:
9780226726106
Contents
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I. What Do Legal Distinctions Do? I. What Do Legal Distinctions Do?
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II. Three Criteria for “Sound” Legal Distinctions II. Three Criteria for “Sound” Legal Distinctions
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A. Conceptual Intelligibility A. Conceptual Intelligibility
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B. Practicality B. Practicality
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C. Normative Appeal C. Normative Appeal
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III. The Trade-Offs among the Three Criteria III. The Trade-Offs among the Three Criteria
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IV. The Classic Flaws and Why They Matter IV. The Classic Flaws and Why They Matter
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A. The Classic Flaws A. The Classic Flaws
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B. Why the Classic Flaws Matter: From form to Substance B. Why the Classic Flaws Matter: From form to Substance
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1. Waste 1. Waste
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2. Fairness/Equality 2. Fairness/Equality
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3. Subversion 3. Subversion
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4. Efficiency 4. Efficiency
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5. Rule of Law 5. Rule of Law
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V. Crafting Legal Distinctions V. Crafting Legal Distinctions
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VI. Where Do You Draw the Line? VI. Where Do You Draw the Line?
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A. The Non-Ideal World and the Inevitable Trade-Offs A. The Non-Ideal World and the Inevitable Trade-Offs
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B. Arbitrariness B. Arbitrariness
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C. Indivisibilities C. Indivisibilities
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D. Dynamic Fields D. Dynamic Fields
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E. Problem Fields and Non-Fields: of Polycentricity and Flux E. Problem Fields and Non-Fields: of Polycentricity and Flux
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F. The Slippery Slope F. The Slippery Slope
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VII. The Fetishism of the Legal Distinction VII. The Fetishism of the Legal Distinction
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Cite
OXFORD ACADEMIC STYLE
Schlag, Pierre, and Amy J. Griffin, 'The Legal Distinction', How to Do Things with Legal Doctrine (Chicago, IL , 2020; online edn, Chicago Scholarship Online, 20 May 2021), https://doi.org/10.7208/chicago/9780226726380.003.0005, accessed 28 Apr. 2025.
CHICAGO STYLE
Schlag, Pierre, and Amy J. Griffin. "The Legal Distinction." In How to Do Things with Legal Doctrine University of Chicago Press, 2020. Chicago Scholarship Online, 2021. https://doi.org/10.7208/chicago/9780226726380.003.0005.
Abstract
In this chapter, we will address questions such as: What work do legal distinctions do? What kinds of criteria can be used to evaluate legal distinctions? What are the classic flaws that can afflict legal distinctions? Why do these flaws matter substantively? In reading this chapter, it will help considerably to think of the various sections as different perspectives on or entry-points to the legal distinction—to wit, different ways of approaching the topic.
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