March 29, 2017
March 18, 2017
A new paper that might be of interest to some readers; the abstract:
What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.
February 02, 2017
This is classic:
Courts of equity have a tradition of aiding the helpless, such as infants, idiots and drunkards. The average security holder in a corporate reorganization is of like kind.
This comes from "Some Realistic Reflections on Some Aspects of Corporate Reorganization," 19 Virginia Law Review 541, 569 (1933). (I owe the reference to a working paper by my colleagues Douglas Baird, Anthony Casey, and Randy Picker.)
December 29, 2016
I appreciate the many blog readers who also read my scholarly writing--it has been one of the best things about the blog for years that it has been a vehicle for sharing my work with other faculty and students across many fields. In that spirit, here are publications--or working drafts--that I made available this year:
"The Case Against Free Speech" appeared in Sydney Law Review.
"Legal Positivism about the Artifact Law," forthcoming in an OUP volume on Law as Artifact.
"Theoretical Disagreements in Law: Another Look," forthcoming in an OUP volume on Ethical Norms, Legal Norms: New Essays in Metaethics and Jurisprudence.
"Philosophy of Law," co-authored with Michael Sevel, in the Encyclopedia Britannica (if you can't access the whole essay, google "philosophy of law," it should come up as a top result and you can get the whole essay that way)
"The Paradoxes of Public Philosophy," in the inaugural issue of the Indian Journal of Legal Theory.
"Why Tolerate Religion, Again? A Reply to Michael McConnell," a working paper (but citable) at SSRN.
"Reply to Five Critics of Why Tolerate Religion?", part of a symposium on my book published by Criminal Law and Philosophy this year.
A revised version of "The Death of God and the Death of Morality," which will eventually appear in a special issue of The Monist on Nietzsche.
"Moralizing Nietzsche's Moral Psycology: The Case of Katsafanas," a review essay which also appears at Notre Dame Philosophical Reviews.
"Moralities are a Sign-Language of the Affects," appeared in 2013 in Social Philosophy and Policy, but I was now able to make the published PDF available on SSRN.
There were actually a couple of other papers I wrote this year that I could not put on SSRN, alas--though hopefully, like the last paper, I will be able to post them in the future after publication. And then there were papers previously put on SSRN that finally appeared in books this year (e.g., here and here), but for which I have not been able to put a PDF on-line.
Thanks for reading! And a Happy New Year to all readers!
December 20, 2016
December 08, 2016
A video of this wonderful lecture and the Q&A is now available here. The lecture itself begins about seven minutes in, after various introductions. (The Dewey Lecture this year was the day after the election, as it happened, which may explain a few comments and jokes.)
November 17, 2016
October 01, 2016
Once again, officials of the Alabama legal system show that they accept the rule of recognition of the Federal legal system...
August 28, 2016
A 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 16, 2016
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!