Brian Leiter's Law School Reports

"Naturalized Jurisprudence and American Legal Realism Revisited"

For those who just can't wait for their print copy!

Oxford Studies in the Philosophy of Law, Volume 1...

...is now out, clocking in at 298 pages.   (UK Amazon lists it as 'in stock,' and presumably the US will shortly.)  OUP has done a very nice production job, and Les Green and I were extremely pleased with the contributions for the first volume.  There are four papers on issues in general jurisprudence (by David Enoch of the Hebrew University, Mark Greenberg of UCLA, Kevin Toh of San Francisco State, and Riccardo Guastini of the University of Genoa); an essay on constitutional theory by John Gardner at Oxford; and three papers on various philosophical (and sometimes empirical issues) surrounding criminal law and procedure, by Larry Laudan from UNAM, Marcia Baron of Indiana, and Thomas Nadelhoffer of Dickinson.

The full contents of volume 1:

1. Reason-Giving and the Law , David Enoch

2. The Standard Picture and Its Discontents , Mark Greenberg

3. Legal Judgments as Plural Acceptance of Norms , Kevin Toh

4. Rule-Scepticism Restated , Riccardo Guastini

5. Can There be a Written Constitution? , John Gardner

6. The Rules of Trial, Political Morality and the Costs of Error: Or, Is Proof Beyond a Reasonable Doubt Doing More Harm than Good? , Larry Laudan

7. Self-Defense: The Imminence Requirement , Marcia Baron

8. Criminal Law, Philosophy, and Psychology: Working At the Cross-roads , Thomas Nadelhoffer

"The Demarcation Problem in Jurisprudence: A New Case for Skepticism"--the (Almost) Final Version

There may be some mostly cosmetic changes before publication, but otherwise this is the essentially final version, which will appear in Oxford Journal of Legal Studies next year.  The core argument remains the same as in the earlier version from last year, though there have been some significant revisions to portions of the paper in light of useful comments from an OJLS referee and from participants in the McMaster "Nature of Law" conference.  This version can be quoted and cited.

"Naturalized Jurisprudence and American Legal Realism Revisited"

MOVING TO FRONT FROM MAY 20:  SEE 2ND UPDATE

This is my reply to critics for a forthcoming symposium issue of Law & Philosophy on my 2007 book Naturalizing Jurisprudence.  The critics are:  Julie Dickson (Oxford), Michael Steven Green (William & Mary), and Mark Greenberg (UCLA).

UPDATE:  I put up the wrong version, my apologies!  The correct, penultimate copy-edited draft is now on-line. 

2ND UPDATE:  The papers to which I reply by Green and Greenberg are now available on-line.  Unfortunately, it does not yet appear Dickson's is available on-line.

"The Circumstances of Civility"

This is a slightly revised version of the short paper I gave as part of the "philosophy panel" at the NEH conference on "Civility and American Democracy" at Washington State University last month.  The abstract:

The paper tries to identify the circumstances in which civility in discourse is both necessary and obligatory. I assume that, pre-theoretically, everyone can agree that “civility” is paramount for discourse in the classroom setting. Teachers should be civil to students, and students to their teachers. By elucidating why civility seems obligatory in this context, I try to specify the circumstances of civility, which, in brief, obtain when epistemic values and motives dominate in discourse. I then describe a political context, "Dystopia," in which the circumstances of civility do not obtain, and so civility is not obligatory, but might still be advisable.

"The Law of Religious Liberty in a Tolerant Society"

This (relatively early) draft essay is available on SSRN for readers who might be interested; the abstract:

This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as "Why Tolerate Religion?" (Constitutional Commentary, 2008) and "Foundations of Religious Liberty: Toleration or Respect?" (San Diego Law Review, 2010) (the account of religion has changed somewhat since these two papers). The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of "religious" conscience; and (2) there are claims of conscience that are not "religious" in character (however precisely religion is understood). "Principled toleration" requires that a dominant group, with the means to stamp out or repress disfavored beliefs of others, nonetheless recognize that there are good moral reasons to permit such beliefs to be held and expressed (subject to the limits imposed by the Harm Principle). The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified? The relation between toleration and religious establishment is also discussed.

This version benefitted from extremely helpful feedback from colleagues at a Work-in-Progress workshop here last week, as well as from written comments by our Law & Philosophy Fellow Ben Laurence.   Additional feedback would be welcome.  Thanks.

"The Demarcation Problem in Jurisprudence: A New Case for Skepticism"

The final (quotable and citable) version is here, for those who might be interested.  It reflects the useful feedback and discussion at the international conference in Girona last May.

"Legal Formalism and Legal Realism: What is the Issue?"

The final, published version, for anyone who might be interested. 

Tamanaha, Formalism, and Realism Redux

Brian Tamanaha (Wash U/St. Louis) has chosen to respond to a 30-page review essay examining in detail the arguments of his book Beyond the Formalism-Realism Divide with a blog posting.   I do not think a blog is a suitable forum for a serious scholarly dispute, and so will keep my reply brief, and below the fold.  Anyone genuinely interested in the issues, my actual criticisms, and my actual views, should look at my essay.

"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: