September 17, 2015

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

September 03, 2015

"Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature"

The 24th Tobriner Lecture at Hastings, now in print.

September 3, 2015 in Jurisprudence | Permalink

September 01, 2015

"Gender and the Analytic Jurisprudential Mind"

This is a wonderful takedown of a set of confusions masquerading as feminist critique; it's by Leslie Green, Professor of the Philosophy of Law at Oxford.

September 1, 2015 in Jurisprudence | Permalink

July 28, 2015

It's educational malpractice to recommend that incoming law students read Llewellyn's "The Bramble Bush"..., alas, Michael Krauss (George Mason) does in The Washington Post no less.  Llewellyn's book is delightful and rich with interesting material, but I guarantee it makes no sense to someone who hasn't already read a lot of cases and studied some basic common-law subjects, like torts and contracts.  (I offer the basic Jurisprudence course here as a 1L elective in the Spring Quarter, and to those students it makes a lot of sense precisely because they've already seen so many examples of what Llewellyn is talking about.)  The one book I recommend to students who ask what to read before starting law school is Ward Farnsworth's The Legal Analyst (though the "Jurisprudence" part of the book isn't really about jurisprudence).  This is accessible to a novice, and provides a beginning law student with a variety of useful analytical tools.  (Farnsworth, now Dean at Texas, is a graduate of the University of Chicago Law School, and the book actually covers much of the material covered in "Elements of the Law," a required fall quarter class for all 1Ls here--indeed, one of my colleagues who teaches "Elements" uses Farnsworth's book in the class.)

July 28, 2015 in Jurisprudence, Of Academic Interest, Student Advice | Permalink

May 13, 2015

On legislative intent

I strongly recommend this review (and the book).

May 13, 2015 in Jurisprudence, Of Academic Interest | Permalink

April 21, 2015

I've joined Aeon Ideas..., and have a couple of viewpoints up.

April 21, 2015 in Jurisprudence, Navel-Gazing | Permalink

April 02, 2015

"Legal Realism and Legal Doctrine"

This piece is for a Penn law Review symposium.

April 2, 2015 in Jurisprudence | Permalink

March 30, 2015

"Normativity for Naturalists"

This paper is for a forthcoming volume of Philosophical Issues (the supplement to Nous) on "Normativity" edited by Ram Neta.  It's a bit more philosophically technical than the typical purely jurisprudential piece, but may interest some readers.

March 30, 2015 in Jurisprudence | Permalink

March 10, 2015

"Philosophy of Law" for the Encyclopedia Britannica

For the first time in a half-century, the Encyclopedia Britannica has commissioned a new essay on "Philosophy of Law," written by myself and a former student, Michael Sevel, now at the University of Sydney.  Hopefully ours will have a half-century run as well!

March 10, 2015 in Jurisprudence | Permalink