Legal Theory Lexicon: Hypotheticals

Introduction The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them. What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from…

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