The Distinctiveness of Appellate Adjudication


This Article concerns two topics that, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the working of entangled concepts in the law. This Article argues that courts engineer entangled legal concepts via appellate adjudication, and it is in this respect appellate adjudication is both crucial and unique, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation. They also facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. This article demonstrates more fully what it is for a legal concept to be entangled and how entanglement supplies guidance in adjudication. This Article carefully examines the background to MacPherson v. Buick and Justice Benjamin Cardozo‘s particular re-engineering of 'negligence‘ and 'duty‘, entangled concepts belonging to the same legal taxonomy. This Article also examines how the United States Supreme Court has engineered 'commerce‘, itself an entangled concept, in order to show that conceptual engineering of entangled concepts occurs outside the context of state common law. The claims made here apply to appellate adjudication in any area of law. Whether we are dealing with private law, public law, common law, or statutory law, or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and some of the constraints judges work under when they work with legal concepts that entangle fact and value.


Appellate Adjudication, entanglement, legal entanglement, legal concepts



Heidi Li Feldman (Georgetown University)



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