August 31, 2010
Fellowships for Aspiring Law Professors
Blog Emperor Caron has updated this invaluable list.
The fashionable bigotry among law profs, reduxI know some readers will regard this as old news, but Professor Volokh is the gift that keeps on giving. Even one of the commenters calls him out on this one fairly quickly.
Franklin Pierce is Now UNH LawAs of yesterday, the law school formerly known as Franklin Pierce Law Center is now called the University of New Hampshire School of Law. Franklin Pierce lives on as the name of its IP center. At this point, there is only an affiliation agreement between the two schools - not a formal merger. A formal merger cannot occur prior to 2013. And in answer to a true inside-baseball question: UNH Law faculty are not employees of the University of New Hampsire system unless, and until, a merger occurs. On a separate note, UNH Law is now searching for a new dean - who must be approved by the President of the University of New Hampshire.
August 30, 2010
In Memoriam: Steven Goldberg (1947-2010)Georgetown's memorial notice is here.
August 29, 2010
"Legal Formalism and Legal Realism: What is the Issue?"
MOVING TO FRONT FROM JULY 20 FOR THE 'BENEFIT' [I HOPE!] OF THOSE WHO SENSIBLY DO NOT READ BLOGS DURING THE SUMMER
I have posted on SSRN a review essay of Brian Tamanaha's interesting recent book Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2010). Unlike a lot of the philosophical work I do, this paper is likely to be of wider interest to law professors, and I do hope anyone who has read the Tamanaha book will also read my analysis of the arguments and the evidence. Here is the abstract:
This is a review essay discussing Brian Tamanaha’s book BEYOND THE FORMALIST-REALIST DIVIDE (Princeton University Press, 2010).
Regarding Tamanaha’s historical thesis that “formalism” was not widely accepted in the 19th-century and that realist themes long predate the American Legal Realists (hereafter “Realists”) of the 1920s, I argue that (1) Tamanaha adduces enough evidence to state at least a *prima facie* case against any historian who wants to claim that in the 19th-century jurists and scholars generally believed that common-law judges did not make law in new circumstances ("Natural Law Formalism") and that judging was simply a mechanical exercise in deductive reasoning ("Vulgar Formalism"), although we still need to know how representative Tamanaha’s evidence is; (2) whether 19th-century jurists and scholars held or rejected more sophisticated (and philosophically interesting) forms of formalism is not addressed at all by Tamanaha’s evidence; (3) Tamanaha does not make even a *prima facie* case that the distinctive theses of the Realists had widespread traction in the 19th-century, partly because he emphasizes themes that were not, in fact, distinctive of Realism (e.g., the political influences on judicial decision), and partly because, when considering distinctive Realist themes, he adduces inapposite evidence or misrepresents the sources he quotes.
Regarding Tamanaha’s jurisprudential thesis that we can now move beyond the formalist-realist divide, I argue that (1) what Tamanaha calls “balanced realism” is a somewhat less precise version of the account of Realism developed by Schauer and myself going back some twenty years; (2) Tamanaha is mistaken in arguing that everyone is now a “balanced realist” largely on the basis of remarks by post-Realist judges (some of whom, like Harry Edwards, recognize that it remains controversial) and without according adequate attention to countervailing evidence, such as the Vulgar Formalism characteristic of public political debate about adjudication in the U.S.; theoretical accounts of adjudication like Ronald Dworkin’s, which try to vindicate Natural Law Formalism without any hint of Vulgar Formalism; and the self-understanding of other common-law legal cultures, like England’s, which embody formalistic elements; and (3) Tamanaha’s attempt to show that “formalism” is “empty” actually demonstrates its substantive meaning for many contemporary theorists as a normative theory or ideal for adjudication, rule-application and/or legal reasoning. “Formalism” and “realism,” once precisely characterized, remain useful jurisprudential categories, whatever the historical verdict on whether 19th-century jurists held Vulgar or Natural Law versions of formalism.
And here is the conclusion of the essay:
Tamanaha’s book reflects some striking research into the views of (largely forgotten or neglected) 19th-century law professors and jurists, and the material he has brought to our attention will demand attention from legal historians. One often has the sense, though, that having unearthed this material, Tamanaha was determined (no matter what!) to show that it really matters, that it really must change our views about realism and formalism, and about the originality of the Realists. Tamanaha’s lack of conceptual clarity about the different kinds of formalist and realist theses about adjudication, together with his penchant to sometimes poach quotes out of context, warrants some skepticism about this ambition of the book. At the same time, one must acknowledge that many of Tamanaha’s targets are as conceptually confused as he is, and that by disabusing those readers of the idea that most jurists thought legal decision-making was mechanical (Vulgar Formalism) or that common-law judges never make law (Natural Law Formalism), the book will have a salutary effect. Notwithstanding the preceding criticisms, then, I think we should be grateful to Tamanaha for his provocative historical research, for laying down a vigorous challenge that should be met by historians of ideas and social scientists, and for imparting appropriate intellectual caution and modesty to future writers who might otherwise be prone to casual talk about a “formalist” age in American legal thought.
August 27, 2010
In Memoriam: Bruce Winick (1944-2010)Jonathan Simon (Berkeley) has a fine memorial notice in honor of his former colleague. The University of Miami notice is here.
August 26, 2010
Northwestern Dean David Van Zandt to Become President of the New School in New York
Dean Van Zandt will leave Northwestern in December of this year, after a fifteen-year tenure. I had actually been preparing a posting on "ten" transformative law school Deans over the last decade, and Van Zandt was going to be on that list. I won't preempt everything I plan to say then, but will observe that very few law school Deans have stamped a law school with as clear an identity as Van Zandt did during his tenure. It will be interesting to see whether his successor tries to change course or to build on the directions on which Van Zandt launched Northwestern over the last decade especially.
The New School press release is here.
UPDATE: It would be hard for a journalist to get this story more wrong:
Dr. Van Zandt, 57, will replace Bob Kerrey, a former Nebraska senator and presidential candidate, whose nine-year tenure was characterized by a huge expansion of the university, but also by student sit-ins and criticism from the faculty over what his detractors said was an autocratic leadership style.
Mr. Kerrey, who will be 67 on Friday, announced in May 2009 that he would step down when his contract expired in July 2011. He will instead stay on through the end of December 2010.
The contrasts between the two leaders are immediately apparent. Dr. Van Zandt is an academic, not a politician, and has a reputation for driving change through low-key, data-driven discussion and consensus.
One reason Van Zandt successfully imposed his vision on Northwestern's law school, and also drove so many of his top faculty off the first 5-6 years of his Deanship, was because he was autocratic. Autocracy can have virtues, of course, but one thing this is not is appointing someone with a non-autocratic leadership style!