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Does Law Have a Function? A Comment on the Two-Level Theory of Decision, 74 Yale Law Journal 640 (1965)


What, in general, is a good reason for decision by a court of law? This is the question of jurisprudence; it has been asked in an amazing number of forms, of which the classic "What is Law ?" is only the briefest. I propose to consider, in this Comment, one recent answer to this question - that supplied by Professor Richard Wasserstrom in his book, The Judicial Decision. I do so because Professor Wasserstrom's argument shares with much other recent jurisprudence some dubious and generally unrecognized assumptions about the logic of legal justification. My principal purpose is to expose these assumptions.

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