Brian Leiter's Law School Reports

"Against the Metaphysical Turn in Recent American Jurisprudence"

A new paper that may be of interest to those who follow literature in jurisprudence; it will appear in my forthcoming book, From a Realist Point of View (Oxford University Press, 2026), which will include previously published papers (some revised a lot), plus new material (including this chapter), all related to realism in legal and political theory.  Here's the abstract:

I argue against the recent fad in American general jurisprudence of characterizing debates about the nature of law as debates about how “legal facts” (the content of law) are determined by “social facts” and “moral facts.”  The reframing is due to Mark Greenberg in a 2004 article (“How Facts Make Law”), but was popularized by Scott Shapiro in a 2011 book (LEGALITY).

In Part I, I argue that (1) Greenberg’s reframing distorts the historical debates in jurisprudence (which were about validity, not content); (2) Greenberg’s own view of legal content cannot explain how law guides conduct outside the courts and, in any case, is unmotivated by any realistic considerations; and (3) Greenberg demands that legal philosophers answer a metaphysical question about determination that neither Saul Kripke (in philosophy of language) nor Nelson Goodman (in philosophy of science) could answer on the terms Greenberg proposes and which are, in any case, irrelevant to important jurisprudential questions.

In Part II, I argue that (1) Shapiro’s adoption of the Greenberg framing of the core questions of general jurisprudence erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept; (2) Shapiro’s explanation of how answers to questions about the nature of law matter for how judges should decide cases is confused; and (3) Shapiro is incorrect that Hart commits a “category mistake.”   At various places I note the ways in which Shapiro, nominally a legal positivist, in fact commits to views characteristic of anti-positivists, like Dworkin and Greenberg.

It would really help if American legal philosophers knew more about the history of their subject and engaged more with scholars outside the Anglosphere.

 

Law schools should oppose an ABA proposal to double the experiential learning credits from 6 to 12

The ABA is up to mischief again, which needs to be opposed for the sake of law students.  Here's what I wrote the last time this awful idea was being floated:

 

Law schools differ, in their student bodies, in their employment outcomes.  Law students differ, in their personal and professional goals, and in their intellectual interests.  There should be a very strong presumption against any proposal of the form that, "200 law schools, and 40,000 law students all must do X."  I have written letters of recommendation for and advised many students have gone on to the most competitive federal appellate court clerkships in the United States, both when I was at Texas and since moving to Chicago in 2008.  The judges often tell the students they hire in their second year what they expect them to do during their remaining time in law school.  Not once have I heard of a circuit court judge who demanded that the student take more "experiential learning" courses.  To the contrary, they want their clerks to take Federal Courts, Administrative Law, sometimes Criminal Procedure, sometimes Securities Regulation (it often depends on the circuit):  in other words, they want their students to have deeper and broader knowledge of legal doctrine.

 

So, too, with the former students who have gone on to the leading private law firms, both the Cravaths and Skaddens, as well as the Bartlit Becks and Susman Godfreys of the world.  What these employers want to know is:  how smart is this student?  how good is her writing?  In twenty years, no hiring partner ever asked me, "How many experiential courses did this student take?"

 

I have taught fabulous students over the last twenty years, and there is no reason legal education should be designed around them and their employers.  But there is also no reason legal education should be designed without regard for them.   Forcing most of these students to do fifteen [or twelve] hours of experiential classes would not have made any of them, I venture, worse, but it would not have given most of them any real benefit.  Some of them would have been forced to drop some of the advanced commercial law classes, or the advanced procedure classes they might have taken.  Those doing JD/PhDs--and, yes, they are students too!--would have had to take classes that would have contributed nothing to their academic work and careers.

 

And then there is the reality that no law school in the United States that I am aware of is actually equipped to offering "experiential" learning adequate to the full range of careers lawyers actually pursue.    Suppose a student wants to pursue a career in corporate and partnership tax.  How many law schools offer meaningful "experiential" learning for that?  Suppose some do; how many could realistically?  Suppose a student wants to go into high-stakes M&A litigation.  Which law schools offer meaningful experiential litigation to that end?  How many could outside those in a few major cities?  I have a relative who went to a top law school and works in a thriving field, health law, with a focus on regulatory compliance.  Her most valuable "experiential" course in law school was contract drafting, and there was no clinical offering that would have been of any use to her; I've yet to see a law school that was different....

 

I am utterly unmoved by what schools for dentists, animal doctors, nurses, etc. require.  The comparison betrays a profound misunderstanding of the law.  Oxford's H.L.A. Hart, the greatest legal philosopher of the last century, noted that you can not understand law and legal systems unless you realize that they centrally involve  rules.  His critics, like the late legal philosopher Ronald Dworkin, drew attention to the fact that how lawyers reason and argue about rules is just as important.  Both Hart and Dworkin highlight the crucial fact about lawyering that distinguishes it from dentistry:  law is fundamentally a discursive discipline, dealing in norms, arguments, and reasons.  That is why legal education, in both the United States and Europe and every other democracy I am aware of, emphasizes learning legal rules and legal reasoning.  One needs a lot of knowledge to be a good dentist, to be sure, but a lot of good dentistry is not a matter of knowing rules and how to reason about them.

 

As Notre Dame law professor Derek Muller aptly remarked on Twitter:

The Section of Legal Education & Admissions has been captured by a small interest group relentless in its demands for a particular, & more expensive, form of legal education. It now demands: -12 (not 6) experiential units -at least 3 in field or clinic -1L doesn't count.

This is not about quality legal education, this is about armchair judgments about legal education combined with self-serving proposals by those who teach experiential courses.

UPDATE: A reader calls my attention to this apt observation in a letter from dozens of law school Deans concerning another bit of unwarranted ABA meddling:

We believe that these proposals are part of a recent trend of the ABA Council to try and exercise greater regulatory control over law schools. As deans, we urge greater restraint in this regard and urge that there be new regulation only if needed to solve a demonstrated problem supported by evidence and only if it is clear that any changes would not have adverse consequences on legal education.

If this continues--and the proposed doubling of experiential credits will be the straw that breaks the camel's back--then law schools will, en masse, have to pressure the federal government to allow other accreditors for U.S. law schools.

ANOTHER:  See the comments by Dan Rodriguez, former Dean at Northwestern (and San Diego).

Congratulations to the Chicago alumni and Fellows who accepted tenure-track jobs in law schools this year

They are:

 

Tony B. Derron, who will join the faculty at the University of Colorado, Boulder.  He is currently a Bigelow Fellow at the Law School.  He received his J.D. from Yale in 2018, where he was Editor-in-Chief of the Yale Law & Policy Review, and Lead Editor of the Yale Journal on Regulation.  He clerked for Judge William Hood III on the Colorado Supreme Court, and for Chief Judge Philip Brimmer on the District of Colorado.  In the Colorado Attorney General’s Office, he first served as the Natural Resources and Environment Fellow, and then as Assistant Attorney General for Air Quality, before coming to Chicago in 2023.  His primary areas of teaching and research interest are environmental law, administrative law, state and local government law, and constitutional law.  

 

Brian R. Downing ’05, who will join the faculty at the University of Mississippi. He recently stepped down after sixteen years as a Director of Google, LLC, where, among other duties, he led the Search Legal Team, and served as First Head of Compliance for Google’s Platforms & Ecosystems organization and was involved in direct negotiation with U.S. and international regulators, including the European Commission over the Digital Markets Act.  His primary areas of teaching and research interest are law & technology, regulated industries, intellectual property, and European Union law.

 

Jacob Hamburger ’21, who will join the faculty at Marquette University.   He is currently a Visiting Assistant Professor at Cornell Law School, where he is teaching civil procedure and immigration law.  He graduated with Honors from the Law School, where he was a Rubenstein Scholar all three years.  Prior to coming to the Law School, he earned an M.A. in Contemporary Philosophy from the École Normale Supériure in Paris.  Before joining Cornell Law School in 2022 as a Postdoctoral Associate in the Immigration Law & Policy Research Center, he was a Staff Attorney at Legal Aid Chicago, working with the Immigrants’ and Workers’ Rights Practice Group.  His primary areas of teaching and research interest are immigration law, civil procedure, administrative law, constitutional law, state and local government law, and labor and employment law. 

 

Michelle Krech, who will join the faculty at Toronto Metropolitan University.  She is currently a Bigelow Fellow at the Law School.  She received her J.D. from the University of Ottawa, where she received a slew of academic prizes for “highest cumulative GPA” and “highest academic achievement in international law,” among others.  She earned her J.S.D. from NYU with a dissertation on “Gendered Equality and World Athletics, 1912-2022:  Norm Change as Authority Sustenance in Private Global Governance.”  She also holds an M.A. in international affairs from Carleton University.  She clerked for a judge on the International Court of Justice in the Hague, and for justices of the Court of Appeal of Ontario.  Her primary areas of teaching and research interest are international law, international organizations, human rights, and critical legal theories.  

 

Jared I. Mayer ’21, who will join the faculty at Cardozo Law School/Yeshiva University. He is currently a Bigelow Fellow at the Law School.  He graduated cum laude from the Law School, where he was Articles Editor of the Chicago Journal of International Law and received the Ernst Freund Fellowship in Law & Philosophy.  He clerked for Justice Barry Albin on the Supreme Court of New Jersey, and was a bankruptcy associate at Ropes & Gray in New York City.  His primary areas of teaching and research interest include bankruptcy, contracts, corporate law & securities regulation, and commercial law.  

 

Lucy Msall MLS '23, who will join the faculty at the University of Chicago in 2026.  She will receive her Ph.D. in economics from the Booth School of Business at the University of Chicago.  She is the first graduate of our relatively new Master of Legal Studies program to be hired into a tenure-track job in a law school.    Her primary areas of teaching and research interest include tax law and policy, law & economics, and empirical legal studies.

 

Eileen R. Prescott ’18, who will join the faculty at the University of Georgia.  She is currently Director of the Accountable Prosecutor Project at Wake Forest University School of Law, where she also teaches criminal law and procedure.  She served on the Articles Staff of the Chicago Journal of International Law while at the Law School.  Afterwards, she clerked for Chief Judge James Shadid on the U.S. District Court for the Central District of Illinois, and spent two years as an Assistant District Attorney in the Federal Litigation Unit of the Philadelphia District Attorney’s Office, before joining Wake Forest in 2021.  Her primary areas of teaching and research interest include criminal law, criminal procedure, evidence, and constitutional law.

 

Asma T. Uddin ’05, who will join the faculty at Michigan State University.   is currently a Research Associate Professor of Law at Catholic University.  At the Law School, she served on the Law Review, and was a Frank Greenberg Scholar.  She practiced real estate law at Greenberg Traurig in Miami, and litigation with Morgan, Lewis & Bockius in Philadelphia, before joining the Becket Fund for Religious Liberty as legal counsel in 2009. After seven years at the Becket Fund, she became Director of Strategy for the Center for Islam and Religious Freedom in Washington, D.C., and then served as a Fellow at the Freedom Form Institute and the Aspen Institute.  She served as a Visiting Assistant Professor at Catholic University, 2021-2023, wher she taught international human rights, gender and law, and a religious liberty clinic; she has also taught the latter at Harvard Law School.  Her primary areas of teaching and research interest are constitutional law, First Amendment, law & religion, international human rights, civil procedure and professional responsibility.

 

Lael Weinberger ’18, who will join the faculty at George Mason University.  He is currently a litigation associate at Gibson Dunn in Washington, D.C.  He graduated with High Honors and Order of the Coif from the Law School, where he was a Kirkland & Ellis Scholar, and won multiple prizes for his academic writing.  He also served as Articles Editor of the Law Review.  He earned a Ph.D. in History from the University of Chicago in 2021 with a dissertation on “American Lawyers and International Law from Arbitration to Human Rights, 1900-1954.”    He clerked for Judge Easterbrook on the U.S. Court of Appeals for the 7^th Circuit, and Justice Gorsuch on the U.S. Supreme Court.  He has also been an Olin-Searle-Smith Fellow and Berger-Howe Legal History Fellow at Harvard Law School from 2019-2022.  His primary areas of teaching and research interest are constitutional law, civil procedure, federal courts, legal history, legal profession, and law & religion.  

 

You can see a complete list of Chicago law alumni in teaching here.

 

Lateral hires in law with tenure or on tenure-track, 2024-25

These are non-clinical/non-LRW appointments that will take effect in summer or fall 2025 (except where noted); (new additions will be in bold.)  Last year's list is here.

 

*Christine Abely (property, contracts, international business transactions) from New England Law to the University of New Hampshire/Franklin Pierce College of Law (untenured lateral).

 

*Jonathan Adler (environmental law, administrative law) from Case Western Reserve University to the College of William & Mary.

 

*Maryam Ahranjani (criminal law, criminal procedure, constitutional law, education law) from University of New Mexico to University of Nevada, Las Vegas.

 

*Amna Akbar (criminal law & procedure, social movements) from Ohio State University to the University of Minnesota.

 

*Angela Aneiros (corporate, commerical law) from Gonzaga University to Lewis & Clark (untenured lateral).

 

*Andrew Appleby (tax, corporate) from Stetson University to the University of Tennessee, Knoxville.

 

*Miriam Baer (criminal law, corporate law) from Brooklyn Law School to California Western School of Law (to become Dean).

 

*Katharine Baker (family law, property) from Chicago-Kent College of Law/Illinois Institute of Technology to the University of Iowa.

 

*Oren Bar-Gill (commercial law, contracts, law & economics) from Harvard University to New York University.

 

*Jeffrey Bellin (criminal law; criminal procedure; evidence) from the College of William & Mary to Vanderbilt University.

 

*Samuel Bray (remedies, equity, constitutional law) from the University of Notre Dame to the University of Chicago.

 

*Sara Bronin (property, land use, energy law) from Cornell University (City & Urban Planning) to George Washington University (Law).

 

*Devon Carbado (criminal procedure, constitutional law, Critical Race Theory) from the University of California, Los Angeles to New York University (effective January 2025).

 

*Caroline Cecot (administrative law, environmental law) from George Mason University to George Washington University.

 

*Shih-Chun Steven Chien (criminal law & procedure, evidence, professional responsibility) from Cleveland State University to University of Nevada, Las Vegas (untenured lateral).

 

*Bryan Choi (law & technology, patent law, intellectual property) from Ohio State University to the University of Colorado, Boulder.

 

*Jonathan Choi (tax, AI & law, statutory interpretation) from the University of Southern California to Washington University, St. Louis.

 

*Grant Christensen (Federal Indian law, civil procedure) from Stetson University to the University of Alabama (untenured lateral).

 

*Christopher Cotropia (patents, intellectual property, empirical legal studies) from the University of Richmond to George Washington University.

 

*Thomas Crocker (constitutional law, criminal procedure) from the University of South Carolina to Boston College.

 

*Jason Czarnecki (environmental law) from Pace University to Chicago-Kent College of Law/Illinois Institute of Technology (to become Dean).

 

*Nestor Davidson (property, land use, housing law, local government law) from Fordham University to Harvard University (Graduate School of Design).

 

*Scott DeVito (commercial law, evidence) from Jacksonville University to Quinnipiac University (untenured lateral).

 

*Avihay Dorfman (torts, property, legal and political theory) from Tel Aviv University to University of Texas at Austin.

 

*Robin Effron (civil procedure, international business transactions) from Brooklyn Law School to Fordham University.

 

*Matthew Erie (Chinese law, Islamic law, international business transactions, law & anthropology) from Oxford University (Asian & Middle Eastern Studies) to American University (law).

 

*Meredith Esser (criminal law & procedure, evidence) from University of Wyoming to University of Nevada, Las Vegas (untenured lateral).

 

*Pamela Foohey (bankruptcy, commercial law, consumer law) from the University of Georgia to the University of Minnesota (effective fall 2026).

 

*Andrew Guthre Ferguson (criminal law & procedure, evidence) from American University to George Washington University.

 

*Brian Galle (tax) from Georgetown University to the University of California, Berkeley.

 

*George Georgiev (corporate law, securities regulation) from Emory University to the University of Miami.

 

*Andrew Gilden (intellectual property, law & technology, civil rights, law & gender/sexual orientation) from Willamette University to Southwestern Law School.

 

*Myriam Gilles (civil procedure, torts, civil rights) from Cardozo Law School/Yeshiva University to Northwestern University.

 

*Jonathan Gould (legislation, constitutional law, administrative law, law & politics) from the University of California, Berkeley to New York University.

 

*Sergio Gramitto Ricci (corporate law) from the University of Missouri, Kansas City to Hofstra University (untenured lateral) (effective January 2025).

 

*Jamie Grischkan (legal history, financial institutions) from Arizona State University to Fordham University (untenured lateral).

 

*Sarah Haan (corporate law, First Amendment) from Washington & Lee University to Brooklyn Law School.

 

*Victoria Haneman (tax, trusts & estates) from Creighton University to the University of Georgia.

 

*Christopher Havasy (administrative law, constitutional law, legal history) from Dickinson School of Law, Pennsylvania State University to George Washington University (untenured lateral).

 

*Jill Horwitz (health law & policy) from the University of California, Los Angeles to Northwestern University.

 

*Jeffrey Kahn (constitutional law, administrative law, human rights) from Southern Methodist University to American University.

 

*Peter Karol (intellectual property, art law) from University of New Hampshire/Franklin Pierce College of Law to Suffolk University.

 

*Orin Kerr (criminal procedure, computer crime law) from the University of California, Berkeley to Stanford University (effective January 2025).

 

*Aneil Kovvali (corporate) from Indiana University, Bloomington to Cardozo Law School/Yeshiva University (untenured lateral) [corrected]

 

*Sarah Lawsky (tax, law & technology, law & philosophy) from Northwestern University to the University of Illinois, Urbana-Champaign.

 

*Ann Lipton (corporate law, securities regulation) from Tulane University to the University of Colorado, Boulder.

 

*Anne Maria Lofaso (labor & employment law) from West Virginia University to the University of Cincinnati (effective January 2025).

 

*Wayne Logan (criminal law & procedure) from Florida State University to Wake Forest University.

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We have a new Dean: Adam Chilton

I'm delighted with this outcome.  I should note we had three remarkable finalists, all outstanding, so we were very fortunate indeed.  (A public "thank you" to my colleague Jonathan Masur who led the Dean Search Committee, and did a great job!) 

As Professor Chilton comments in the preceding news release:  "I strongly believe that the University of Chicago Law School is the world’s most academically outstanding and rigorous law school, and it is an extraordinary honor to lead it."  Just yesterday, President Trump wrote about a judicial nominee that she went to "the University of Chicago, one of the best Law Schools in the World."   I assume, with the choice of Professor Chilton, President Trump's future social media messages will drop the "one of" part!

Federal district court in DC permanently enjoins Trump's executive order against Perkins Coie

Here.  I assume this will survive on appeal, if they even bother to appeal.  This makes the capitulation of Paul Weiss, Kirkland, Skadden Arps et al. even more embarassing.

Psychologist and law professor Phoebe Ellsworth (emerita, Michigan) elected to the National Academy of Sciences

Here.

775 law professors file amici brief in support of Susman Godfrey's battle with federal tyranny

Here.

Seven law professors elected to the American Academy of Arts & Sciences

They are:  Deborah Archer (NYU), Oona Hathaway (Yale), Kenneth Mack (Harvard), Liam Murphy (NYU), Daniel Rodriguez (Northwestern), Edward Rubin (Vanderbilt), and Kevin Washburn (Iowa).

Corporate Practice Commentator's "top 10" corporate & securities articles for 2024

The selected articles are:

Contract Production in M&A Markets, 171 U. Pa. L. Rev. 1881-1924 (2023), Choi, Stephen J; Gulati, Mitu; Jennejohn, Mathew; Scott, Robert E.

Corporate Racial Responsibility, 124 Colum. L. Rev. 361-430 (2024), Fletcher, Gina-Gail S; Lovelace, H. Timothy Jr.

Gender and the Social Structure of Exclusion in U.S. Corporate Law, 90 U. Chi. L. Rev. 1819-1888 (2023), Afsharipour, Afra; Jennejohn, Mathew

Paying for Performance? Attorneys’ Fees in Fraud Class Actions, 21 J. Empirical Legal Stud. 899-926 (2024), Choi, Stephen; Erickson, Jessica M.; Pritchard. A.C.

The Administrative Origins of Mandatory Disclosure, 40 J. Corp. L. 1143-1200 (2024), Platt, Alexander I.

The Lost Promise of Private Ordering, 109 Cornell L. Rev. 1-62 (2023), Hwang, Cathy; Nili, Yaron; McClane, Jeremy

The Making and Meaning of ESG, 14 Harv. Bus. L. Rev. 403-453 (2024), Pollman, Elizabeth

The Rise of Private Equity Continuation Funds, 172 U. Pa. L. Rev. 1601-1666 (2024), Kastiel, Kobi; Nili, Yaron

The Sea Corporation, 108 Cornell L. Rev. 1569-1638 (2023), Anderson, Robert

Voting Rights in Corporate Governance: History and Political Economy, 96 S. Cal. L. Rev. 881-942 (2023), Haan, Sarah C.