September 29, 2017

How should a Dean who understands academic freedom respond to public controversy about faculty writing?

So we know from the unhappy example of Dean Ferruolo throwing a faculty member under the bus what not to do:  you don't publish a statement on the homepage of the school singling out a faculty member's work, declare that not only do you, as Dean, disagree with it, but suggest that these are pariah views in "our law school community", and imply that the offending views may implicate "racial discrimination" and persecution of the "vulnerable" and "marginalized."  Making an obligatory reference to academic freedom in passing does not undo the damage that this decanal misconduct causes. 

The job of administrators is not to share their opinions about the views of members of the faculty, but to administer a university environment in which faculty and students may express points of view that do not otherwise violate anti-discrimination, sexual harassment or other laws.  (The silly op-ed did not violate any applicable law obviously).  So one obvious, and preferable, option would have been for the Dean to make no public statement at all.  He could have met with concerned student groups, and educated them about academic freedom and reaffirmed institutional policies about equal opportunity.  If a Dean makes any public statement in the context of such a controversy, it should not include any comment on a faculty member's views; it would suffice, for example, to simply reaffirm the institution's commitment to equal opportunity for all students and the like.

The Kalven Report got it exactly right fifty years ago, and all administrators ought to read and think about it.  The university sponsors critics, it is not itself a critic or advocate (except for that narrow range of issues central to the university's function).   A Dean, or other university administrator, forfeits his academic freedom upon becoming Dean--in part, because Deaning is not a scholarly enterprise but an administrative one, and academic freedom exists only to protect the scholarly pursuit of truth.  As an administrator, the Dean's job is to protect academic freedom and protect an environment in which faculty and students can express their views in the appropriate fora, such as the classroom, scholarship, and sometimes in the public sphere.   In order to preserve a community of open and vigorous debate, the Dean must not lend his authority to one side or the other.   That there is an uproar about a faculty member's scholarship or op-ed does not mean the Dean must speak out, except perhaps to educate people about what a university is and what academic freedom is and why it matters.

Continue reading


September 29, 2017 in Faculty News, Jurisprudence, Of Academic Interest, Professional Advice | Permalink

September 04, 2017

"Legal Positivism about the Artifact Law: A Retrospective Assessment," the final version...

...is now on SSRN.


September 4, 2017 in Jurisprudence | Permalink

June 06, 2017

"Justifying Academic Freedom: Mill and Marcuse Revisited," revised version now on-line...

...here.  The last version benefitted from talks and workshops at Iowa, Tel-Aviv, Haifa, and Chicago.  The abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.


June 6, 2017 in Jurisprudence | Permalink

April 06, 2017

More on Judge Gorsuch, plagiarism, and Oxford

Leslie Green, who holds one of the two statutory (i.e., university-wide) Chairs in Philosophy of Law at Oxford, has now expanded on his thoughts about the Gorsuch plagiarism case and the claims of John Finnis (who held a personal chair in legal philosophy, but is now emeritus).  (Earlier posts here and here.)


April 6, 2017 in Jurisprudence, Legal Profession, Of Academic Interest | Permalink

April 05, 2017

On Judge Gorsuch's plagiarism

In fact, plagiarism is not, contrary to John Finnis, normal practice at Oxford.  This also is irrelevant to his nomination, but the Judge should acknowledge the error.


April 5, 2017 in Jurisprudence, Of Academic Interest | Permalink

March 31, 2017

"Justifying Academic Freedom: John Stuart Mill and Herbert Marcuse Revisited"

A new draft paper that may be of interest to some readers; the abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.


March 31, 2017 in Jurisprudence | Permalink

March 29, 2017

"Naturalism in Legal Philosophy" revised and updated at Stanford Encyclopedia of Philosophy (SEP)

It's also now co-authored with Max Etchemendy, our Law & Philosophy Fellow this year at Chicago.  SEP is a uniquely excellent on-line resource; I commend it to readers looking for high-level introductions to almost any topic in philosophy.


March 29, 2017 in Jurisprudence | Permalink

March 18, 2017

"The Roles of Judges in Democracies: A Realistic View"

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.


March 18, 2017 in Jurisprudence | Permalink

February 02, 2017

Jerome Frank's argument for the absolute priority rule in bankruptcy

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.)


February 2, 2017 in Jurisprudence, Legal Humor | Permalink

December 29, 2016

Some publications and working papers this year

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 29, 2016 in Jurisprudence, Navel-Gazing | Permalink