On the off chance that some Chicago students visit this blog: I appreciate the strong interest in the Jurisprudence seminar, and I plan to increase the size of the seminar significantly (at least 50%) in order to accomodate some of the students on the waitlist. Please be there the first day if you remain interested in taking the seminar. I hope to circulate this message via Chicago's "chalk" system, which I'm still figuring out.
I've posted the penultimate draft of the introduction to my collection of papers on Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, which Oxford University Press will publish (simultaneously in both cloth and paper, happily) in 2007 (during the Spring, I hope). The introduction, "From Legal Realism to Naturalized Jurisprudence," gives a general overview of the papers in the volume and the set of problems they address, and how they all hang together, more or less. The book will also include two new Postscripts responding to a variety of critics.
A short excerpt from the introduction:
American Legal Realism was, quite justifiably, the major intellectual
event in 20th-century American legal practice and scholarship,
so it was somewhat disheartening to me, with my philosopher’s hat on, to find
that Realism was held in contempt, if noticed at all, by philosophers, even
those with a substantial interest in law. The explanation for this state of affairs is, in retrospect, clear
enough. On the one side, the Realists
were not interested in philosophy, and tended to be intellectually reckless in
some of their pronouncements. On the
other side, the philosophers, who often knew little about law in practice (even
those who were jurisprudents), were systematically misconstruing the kinds of
questions Realists were asking. Academic lawyers who tried to intervene
in some ways made matters worse in virtue of having a tin ear for philosophical
questions and problems. Other academic lawyers were content to offer
useful intellectual histories of Realism, without regard for what was
jurisprudentially significant. What was needed was an explanation for why
philosophers ought to care about the actual
questions with which the Realists were concerned, and why the Realist questions
were, in fact, questions within the purview of philosophical thinking about
time in the early 1990s, the relevant mediating consideration became clear to
me: the legal philosophical tradition
that had marginalized American Legal Realism was predicated on a conception of
philosophy as beholden to the method of conceptual analysis via appeal to folk
intuitions (as manifest, for example, in ordinary language), a metehod that was
itself at risk of becoming an item of antiquarian interest in the context of
the naturalistic revolution of late 20th-century philosophy. Recognize the Realists as “prescient
philosophical naturalists,” and you now understand why most legal philosophers
misunderstood them, and why they got so many things right.
As I argue in Ch. 3, economic analysis of law (the most influential
intellectual event in American law since the 1970s) is reasonably understood as
a continuation of the Realist program.
H.L.A. Hart presents a complicated case, since he was an experienced English
lawyer. Here part of the explanation may
have to do with the differences between the U.S. and English legal systems, and, in particular, the respective roles of the
I am thinking especially of Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca: Cornell University Press, 1982).
This is brought out usefully by Michael S. Moore (discussing Summers) in “The
Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism,” reprinted in Moore’s
Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000).
Useful examples are William Twining, Karl
Llewellyn and the Realist Movement (Norman: University Oklahoma Press, 1973) and G. Edward White, Patterns of American Legal Thought
(Indianapolis: Bobbs-Merrill, 1978),
esp. Chs. __ and __. Less satisfactory
is the coverage of Realism in a more recent work of intellectual history, Neil
Duxbury, Patterns of American
Jurisprudence (Oxford: Oxford
University Press, 1995), as I discuss in Chapter 3.
As many readers know, I'm going to be at the University of Chicago in the fall. Driving from Austin is more hassle than it's worth, so I am wondering whether any readers in the Chicago area who might be on leave themselves in the fall, or who have an extra car, would be willing to "rent" me a vehicle for local use. (Because I'll be commuting back and forth at various intervals between Chicago and Austin, I won't even be using a car continuously while there.) If so, please e-mail me. Many thanks.
UPDATE: Someone suggested shipping the car, or getting it driven (try www.autodriveaway.com, which does both), which is what I may end up doing, though for a variety of reasons not worth boring folks with, leaving the car in Austin is preferable.
There are many lovely things about living in Austin...but the relentless summer heat is not one of them! In consequence, we like to flee for a bit during the summer to the place that is both easy to get to and has a perfect climate: San Diego. If anyone has advice about a nice hotel/resort that is children-friendly, I'd be grateful; so far, we haven't found such a place. Please e-mail me. Many thanks!
UPDATE: My sincere gratitude for the helpful feedback. The consensus winners were (in the "luxury") category the La Jolla Beach & Tennis Club; Hilton La Jolla Grande Torrey Pines; Hotel Del Coronado (with some dissenters on that one); and, in the nice but not as expensive category, the Catamaran (on Mission Bay) and the Sea Lodge in La Jolla. Other folks offered good tips on lodging North of San Diego too. My thanks again!
I have posted a new paper--the subject of my 'Or 'Emet Lecture at Osgoode Hall Law School of York University, Toronto this past March--on the subject: "Why Tolerate Religion?" You may download the working draft here. Comments are welcome. Here is the abstract:
Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such—or so this paper argues.
It's been a pleasure and privilege to have had the opportunity to work with many of you during your time in the Law School. I'm sure I speak for all my colleagues in wishing you much professional success and personal happiness in the years ahead. I look forward to seeing many of you at tomorrow's graduation ceremony.
The University of Texas School of Law has made two major senior hires: Daniel Rodriguez (positive political theory, administrative law)--formerly Dean of the University of San Diego School of Law and, before that, a professor for a decade at Boalt Hall School of Law at the University of California at Berkeley--has turned down offers from Duke, Vanderbilt, and USC to join the Texas faculty in 2007; and William Sage at Columbia Law School, who is one of the leading health law scholars in the country, and who is visiting at Texas this year, will join the full-time faculty in the fall, where he will also put his academic background as both a JD and an MD to good use as the new Vice-Provost for Health Affairs at the University of Texas at Austin, where he will help develop institutional and research programs linking UT Austin (which does not have its own medical school) with the medical schools in the UT System.
I will now assert a point of personal privilege, as it were, to observe what a remarkable transformation has taken place at UT in the last decade, and especially in the last five years. From 1981-2001, UT hired exactly three faculty laterally from peer or better law schools: Douglas Laycock (constitutional law, remedies) from the University of Chicago in 1981 (who is now taking emeritus status here to become the proverbial "trailing spouse" en route to Michigan!); Julius Getman (labor law) from Yale Law School in 1986; and William Forbath (legal history, constitutional law) from the University of California, Los Angeles in 1998.
By contrast, in the last five years alone we have recruited the following tenured faculty from peer or better law schools: Lawrence Sager (constitutional law) from NYU; Ronald Mann (commercial law, intellectual property) from Michigan; Bernard Black (corporate law, securities regulation) from Stanford; and now Dan Rodriguez, formerly of Boalt, and Bill Sage from Columbia. We are "in discussion" with some other faculty from "top five" law schools who have also expressed interest in heading to Austin. And none of this includes mention of recruitment of scholars of international distinction like Jane Stapleton (torts, products liability) from the Australian National University and Sir Basil Markesinis (comparative law) from Oxford University (he is now at University College London when he is not at Texas); or of first-rate folks in their fields (who may not be "household" names, as it were) like Robert Peroni in international tax from George Washington University.
But, alas, not all the Austin news is good news, since our other senior offer this year was declined: Keith Whittington (constitutional law, theory, and history) will return to the Department of Politics at Princeton University.
Enough navel-gazing: the other newsworthy item here is the hit that Columbia Law School has taken this year: three senior faculty have moved to NYU; one has gone to Harvard; and now one has gone to Texas. The splendid addition of the Scotts from Virginia hardly offsets these losses. Some correspondents suggest that the "balance of [legal academic] power" in New York City has now shifted to Greenwich Village. I am, personally, skeptical that one year can mark such a change, given some of the outstanding laterals Columbia has recruited in the last couple of years (Thomas Merrill from Northwestern, Timothy Wu from UVA come immediately to mind, but there are others). The next few years may be instructive on this score.