Brian Leiter's Law School Reports

McCubbins from UC San Diego to Southern California

Mathew McCubbins, a leading figure in positive political theory in the Department of Political Science at the University of California at San Diego, has accepted a joint appointment in several units, including the Law School, at the University of Southern California, effective this January.  The USC press release is here.

What do philosophers believe?

Some law professors and students may enjoy the results of a survey of the philosophical opinions of nearly 900 faculty at leading PhD programs throughout the Anglophone world.  There were a lot of questions about fairly technical philosophical debates, but many of the results will be easily intelligible to those outside the field:  e.g., about three-quarters of philosophers are atheists, while less than 15% believe in God; but a solid majority of philosophers believe in objective moral truths, while only about a quarter hold the correct view!

Why Legal Positivism?

Scott Shapiro (Yale) has put together a splendid panel on the topic "Legal Positivism:  For and Against" for the AALS annual meeting in New Orleans (indeed, it was enough to make me attend, notwithstanding my standing aversion to the AALS meeting!).

A draft of my remarks are now available, and I hope they might be accessible and helpful to those outside jurisprudence, in particular, in explaining what theoretical considerations account for the dominance of legal positivism among legal philosophers.  The abstract:

This short paper will be presented at a panel on "Legal Positivism: For and Against?" at the annual meeting of the Association of American Law Schools in New Orleans, January 9, 2010. It attempts to identify the theoretical considerations that explain why legal positivism is the dominant view among legal philosophers. Three are identified: (1) positivism gives the best account of the ordinary understanding of law; (2) its account of law is the one deployed fruitfully in all empirical social science; and (3) it does not involve incredible or controversial metaphysical commitments. The paper concludes by noting that the competitors to legal positivism have narrowed considerably in recent years. American Legal Realism (as I have argued elsewhere) depends on a positivist theory of law, rather than being in competition with it. The most sophisticiated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and simply proposes changing the subject. And Dworkin's theory fails along the three dimensions of theoretical adequacy noted.

The paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions. Unfortunately, so do the positivist theories of Hart and Raz. Only atrocious public relations for legal positivism--aided and abetted by decades of misrepresentations by Dworkin--has led so many casual consumers of the jurisprudential literature to think otherwise. Thinking morality relevant to constitutional adjudication is no reason not to be a legal positivist.

The point in the second paragraph bears emphasizing:  none of the leading positivist theories of law make morality irrelevant to the adjudication of difficult constitutional questions.  It is an interesting sociological, but not philosophical, question why so many believe otherwise.

Eagles-Broncos Tickets for December 27?

Now here's a request you weren't expecting on this blog, I know:  but does anyone have 3 tickets for the Eagles-Broncos game on December 27 in Philly?   4 tickets is fine too.  Please e-mail me if you have them and are willing to sell.  Many thanks.

What have been the most important developments (for good or ill) in legal academia over the last decade?

Inspired by this thread, I thought I'd run a poll on the subject, inviting readers to rank order developments in legal academia (or affecting legal academia) in terms of their importance or impact, whether good or ill, since roughly 2000.  Have fun!

In Memoriam: C. Edwin Baker (1947-2009)

I am sorry to report that the distinguished First Amendment scholar, and longtime faculty member at the University of Pennsylvania Law School, passed away suddenly on December 8.   You can find out more about his career and work from his Penn homepage.

UPDATE:  The Penn memorial notice is here.

Law Porn Redux

Apparently the flow of law porn continues unabated.  Oddly, I got hardly any (maybe it''s all being sent to Texas?  or maybe Chicago, not wanting faculty to be distracted from their 24/7 habits of work, screens it out).   I hope at least schools are following some sensible advice about what to send!

What Constitutes an "Exploding Offer"?

Dan Markel (Florida State) raises the issue, and I basically agree with his take.  Two weeks or less to respond to an offer is an exploding offer in my book.  One month between time of the faculty vote and a decision is reasonable, assuming of course that a written offer is also producing during that time consistent with discussions.  Exploding offers sometimes work, of course, but my guess is that if someone looks empirically at how long recipients of exploding offers remain at a school, they'll find it's less than the average. 

More Budgetary Troubles at Harvard Law School

MOVING TO FRONT FROM DECEMBER 1--SEE UPDATE

The Kagan years are clearly over.  One can hear the sigh of relief in New Haven...

UPDATE:  At least one knowledgeable reader (not at Harvard) read this to imply that Harvard would not be facing a budgetary crunch if Elena Kagan had stayed.  That certainly wasn't the point.  "The Kagan years" simply referred to the period of lavish (and perhaps excessive) spending during Dean Kagan's tenure that permitted Harvard to recruit a lot of faculty.  That, along with a major building project for which the funding was not in place, no doubt contributed mightily to the financial difficulties Dean Minow has now inherited.

The Truth about "Above the Law" Revealed at Last

By a commenter (who else?):

ATL [says it] takes its journalistic mission seriously. ATL, please get over yourselves and realize that what you produce is nothing more than trashy entertainment for niche group of wretched people. If this site went suddenly offline forever the world would be no worse off.

(Thanks to a reader who asked to remain anonymous, but was inspired to write by our earlier item.)