August 28, 2016

"Theoretical Disagreements in Law: Another Look"

new paper forthcoming from OUP in Ethical Norms, Legal Norms:  New Essays in Meteaethics and Jurisprudence (edited by Plunkett, Shapiro & Toh); the abstract:

In "Explaining Theoretical Disagreement" (2009), I defended an answer to Dworkin's argument that legal positivists can not adequately explain disagreements among judges about what the criteria of legal validity are. I here respond to a variety of critics of my answer, in particular, Kevin Toh. I argue that Toh misrepresents Hart's own views, and misunderstands the role of "presupposition" in both Hart and Kelsen. I argue that a correct reading of Hart is compatible with the error-theoretic interpretation of theoretical disagreement I defended in 2009.


August 28, 2016 in Jurisprudence | Permalink

August 16, 2016

Philosophy of law in the Encyclopaedia Britannica

This is the first new essay commissioned on the subject in more than fifty years (the last one was by Julius Stone, also a legal realist!).  I had the privilege of co-authoring the new essay with a former student, the legal philosopher Michael Sevel (not a legal realist, but like Stone, at the University of Sydney!).  Alas, you need to access it from an institution that subscribes to read this essay in full.

UPDATE:  After I posted a similar announcement at my philosophy blog, an editor at EB wrote:  "in fact anyone can read the entire article for free if he/she comes to it through a Google search. I believe we are fourth or fifth in the hit list returned by searching on 'philosophy of law'. Clicking on the link should provide access to the full article. (Obviously, searching on "philosophy of law Britannica" would make it even easier.) Likewise any other article in Britannica."  Useful information, I didn't realize that!


August 16, 2016 in Jurisprudence | Permalink

May 09, 2016

On the new translation of Alf Ross's "Of Law and Justice" and Hart's misreading of Ross

This is going to be an important event in jurisprudence.  (I touch on some of this, which I learned from Prof. Holtermann, here.)


May 9, 2016 in Jurisprudence | Permalink

May 08, 2016

"Why Tolerate Religion, Again? A Reply to Michael McConnell"

At SSRN; the abstract:

This essay discusses a lengthy review by Professor Michael McConnell of the Stanford Law School in the Yale Law Journal of my 2013 book WHY TOLERATE RELIGION? (Princeton University Press). I identify two important objections that Prof. McConnell raises, but also identify eight different mistakes or misunderstandings that mar other parts of the review. I conclude by taking Prof. McConnell to task for several rhetorical cheap shots that, together with the other errors, suggests that his essay was more a partisan brief than a scholarly evaluation of the arguments. Most surprisingly, the fact that Professor McConnell, in his lengthy review, never actually responds to my book's central thesis--namely, that the inequality between religious and non-religious claims of conscience is not morally defensible--suggests that there may really be no serious argument on the other side.


May 8, 2016 in Jurisprudence, Of Academic Interest | Permalink

April 07, 2016

President Obama is at the University of Chicago Law School today discussing the Supreme Court and the nomination of Judge Garland...

...which you can watch here.  And if you'd like to know the truth about what's really going on with Supreme Court nomination battles, read this.  (I'm not there, I'm at home working, since the faculty have been thrown out of their offices for the day!)


April 7, 2016 in Jurisprudence, Legal Profession, Of Academic Interest | Permalink

March 17, 2016

A couple of philosophically-minded papers related to Nietzsche...

...with material perhaps of use to others with general interests in moral and political theory.  "Moralities are a Sign-Language of the Affects" offers an interpretation and defense of Nietzsche's moral psychology, with special attention to the relationship between moral judgment and emotional response, and some of the empirical evidence in support of Nietzsche's kind of view.  (This paper was published two years ago, but the PDF can now be made available on-line.)  "The Death of God and the Death of Morality" offers an interpretation of the moral import of Nietzsche's claim that "God is dead," focusing in particular on its import for moral egalitarianism and the basis of equality problem (in virtue of what are all humans morally equal?).


March 17, 2016 in Jurisprudence | Permalink

December 02, 2015

Justice Scalia's Theocratic Vision

My colleague Judge Posner and Prof. Eric Segall (Georgia State) comment.


December 2, 2015 in Jurisprudence, Of Academic Interest | Permalink

October 16, 2015

Federal Court dismisses another suit alleging misleading law school employment statistics (Michael Simkovic)

The Wall Street Journal reports that a Federal District Court recently dismissed a lawsuit alleging that Florida Coastal School of Law defrauded its students through misleading employment statistics.  (hat tip Paul Caron)  As noted in the Journal, this is the latest in a long string of victories for defendant law schools in these cases.  

The legal issues and relevant facts of many of the suits against law schools are substantially similar because of standardized data collection techniques and methods of disclosure.  Although courts thus far have either denied class certification or dismissed these fraud suits on the merits, the language of opinions has tended to be somewhat more sympathetic toward plaintiffs when the defendant law school admitted students with lower undergraduate GPAs and standardized test scores.  (For example, compare the decision in Brooklyn to the decision in New York Law School (especially the more plaintiff-friendly appellate opinion)).

Given Florida Coastal's admissions standards--described by the Court as among "the lowest . . .of accredited law schools . . . in the nation"--Florida Coastal may have been among plaintiffs' attorneys best chances for success. Failure in this case does not bode well for future lawsuits against law schools based on similar legal theories and fact patterns.  

The Florida Court explained that Florida Coastal students were college-educated and therefore sufficiently sophisticated that they were unlikely to be misled, but rather would have reasonably understood the limits of the data disclosures or requested additional clarifying information.  

The Court's detailed reasoning follows:

Continue reading


October 16, 2015 in Guest Blogger: Michael Simkovic, Jurisprudence, Legal Profession, Of Academic Interest | Permalink

September 17, 2015

Penn Law Review symposium on legal realism and "The New Doctrinalism"...

...is now available.  I haven't read most of the papers at this point, but I can commend both Ed Rock's and Henry Smith's as particularly interesting.  (I was unable to attend the symposium, so I did not hear the papers either.)  My own contribution to the symposium is here.


September 17, 2015 in Jurisprudence, Of Academic Interest | Permalink

"The Death of God and the Death of Morality"

A new draft paper, perhaps of interest to some readers:

Nietzsche famously proclaimed the "death of God," but in so doing it was not God's death that was really notable--Nietzsche assumes that most reflective, modern readers realize that "the belief in the Christian god has become unbelievable” (GS 343)--but the implications of that belief becoming unbelievable, namely, "how much must collapse now that this faith has been undermined," in particular, "the whole of our European morality" (GS 343).  What is the connection between the death of God and the death of morality?


I argue that Nietzsche thinks the death of God will undermine two central aspects of our morality:  its moral egalitarianism, and its belief in moral responsibility and warranted guilt.  I offer an account of how Nietzsche sees the connections, and conclude with some skeptical considerations about whether Nietzsche was right that atheism would, in fact, undermine morality.

A friend on FB, an historian at Harvard, posted the following excerpt from the preceding paper, which leads me to think it might be worth sharing:

Consider the Nietzschean Trolley Problem (apologies for anachronism): a runaway trolley is hurtling down the tracks towards Beethoven, before he has even written the Eroica symphony; by throwing a switch, you can divert the trolley so that it runs down five (or fifty) ordinary people, non-entities (say university professors of law or philosophy) of various stripes (“herd animals” in Nietzschean lingo), and Beethoven is saved. For the anti-egalitarian, this problem is not a problem: one should of course save a human genius at the expense of many mediocrities. To reason that way is, of course, to repudiate moral egalitarianism. Belief in an egalitarian God would thwart that line of reasoning; but absent that belief, what would?


September 17, 2015 in Jurisprudence | Permalink