Brian Leiter's Law School Reports

Howard Bashman, Nonpartisan?

I really don't follow Mr. Bashman's blog that closely, but I was surprised to read this article in the New York Times which described his blog as "non-partisan."  While it is true that he largely links to news and related items about appellate litigations, I would have thought it obvious (from my occasional visits to his site) that he leans to the right, both in terms of what he often chooses to highlight and his occasional editorial remarks.  What do readers who follow his site more closely think?

This Should Help Michigan in the US News Rankings

Based on expenditures alone...

Law School Faculty Quality: Who is Up and Who is Down Since 2003

MOVING TO FRONT from July 18 for benefit of readers who missed it during the summer

We ran our last reputational surveys of leading legal scholars in the Spring of 2003; I hope to run a new one in Spring 2007, since some perhaps meaningful changes have taken place in faculty rosters in the interim.  Here are the changes between the Spring 2003 rosters and the expected fall 2006 rosters.   Those listed as "gone" may have retired, taken a job elsewhere, been denied tenure, or, sadly, died since 2003; those who retired or left a tenured post for a tenured post elsewhere are listed accordingly in parentheses.  For "new" faculty that were lateral appointments, the school from which they were hired away is listed in parentheses after the faculty member's name.  The list aims to include only tenure-stream non-clinical faculty who are primarily in law (e.g., hold tenure in law); adjuncts and emeritus faculty are excluded.

Schools are listed based on their faculty quality rank in the 2003 survey.  The approximate faculty size range follows in parentheses after the school name.

1.  YALE LAW SCHOOL (50-59)

Gone (3):  Abraham Goldstein (retired), Carol M. Rose (retired, moved to Arizona), Ruth Wedgwood (Johns Hopkins).

New (10):  Yochai Benkler (NYU), Richard Brooks, John J. Donohue III (Stanford), Heather Gerken (Harvard), Christine Jolls (Harvard), Yair Listokin, Jonathan R. Macey (Cornell), Tracey Meares (Chicago), Robert C. Post (Berkeley), Alec Stone Sweet (Oxford).

2.  HARVARD LAW SCHOOL (70-79)

Gone (10):  Samuel Bagenstos, Christopher F. Edley, Jr. (Berkeley, to become Dean), Heather Gerken (Yale), Christine Jolls (Yale), Diane Ring, Margo Schlanger, Henry J. Steiner (retired), Detlev F. Vagts (retired), W. Kip Viscusi (Vanderbilt), Jonathan L. Zittrain.

New (14):  Rachel Brewster, Jody Freeman (UCLA), Jack L. Goldsmith III (Virginia), Adriaan Lanni, Daryl Levinson (NYU), Bruce Mann (Penn), John Manning (Columbia), Gerald Neuman (Columbia), Jed Shugerman, Matthew Stephenson, Jeannie Suk, George Triantis (Virginia), Mark Tushnet (Georgetown), Adrian Vermeule (Chicago).

2.  UNIVERSITY OF CHICAGO LAW SCHOOL (30-39)

Gone (11):  Albert Alschuler (retired, moved to Northwestern), David Currie (retired), Kenneth Dam (retired), Daniel Fischel (retired, now adjunct at Northwestern), Jack L. Goldsmith III (Virginia, then Harvard), Gidon Gottlieb (retired), Philip Hamburger (Columbia), Jill Hasday, Tracey L. Meares (Yale), Alan O. Sykes, Jr. (Stanford), Adrian Vermeule (Harvard).

New (7):  Adam Cox, Jacob Gersen, M. Todd Henderson, Alison LaCroix, Anup Malani (Virginia), Thomas Miles, Adam Samaha.

4.  STANFORD LAW SCHOOL (40-49)

Gone (6):  Barbara A. Babcock (retired), Bernard S. Black (Texas), John J. Donohue III (Yale), Margaret Jane Radin (retired, moved to Michigan), William H. Simon (retired, moved to Columbia), Michael Wald (retired).

New (13):  Joshua Cohen (MIT), Robert Daines (NYU), Dan Ho, Amalia Kessler, Larry Kramer (as Dean, from NYU), Mark A. Lemley (Berkeley), Lawrence Marshall (Northwestern), Jennifer R. Martinez, Alison Morantz, Jane Schacter (Wisconsin), Norman Spaulding (Berkeley), Alan O. Sykes, Jr. (Chicago), David Victor (Stanford Prog. for Energy & Development).

5.  COLUMBIA LAW SCHOOL (50-59)

Gone (12):  Marvin Chirelstein (retired), Cynthia Estlund (NYU), Allan Farnsworth, Samuel Issacharoff (NYU), Bradley C. Karkkainen, David Leebron (Rice, to become President), Chen Lichtenstein, John F. Manning (Harvard), Gerald Neuman (Harvard), William M. Sage (Texas), Jeremy Waldron (NYU), Lawrence Zelenak (Duke).

New (16):  Michael Doyle (Princeton), Elizabeth Emens, Zohar Goshen (half-time, from Hebrew U), Philip Hamburger (Chicago), C. Scott Hemphill, Olatunde Johnson, Clarisa Long (Virginia), Petros Mavroides (half-time, from Neuchatel), Thomas W. Merrill (Northwestern), Edward R. Morrison, Alex Raskolnikov, Elizabeth Scott (Virginia), Robert Scott (Virginia), Catherine Sharkey, William H. Simon (emeritus, Stanford), Timothy Wu (Virginia).

5.  NEW YORK UNIVERSITY SCHOOL OF LAW (70-79)

Gone (7):  Yochai Benkler (Yale), Robert M. Daines (Stanford), Larry Kramer (Stanford, to become Dean), Daryl Levinson (Harvard), Stephen R. Perry (Penn), Michael H. Schill (UCLA, to become Dean), Rebecca L. Tushnet.

New (13):  Oren Bar-Gill, Lily Batchelder, Stephen Choi (Berkeley), Kevn Davis (Toronto), Cynthia Estlund (Columbia), Roderick M. Hills, Jr. (Michigan), Daniel Hulsebosch (St. Louis), Samuel Issacharoff (Columbia), Deborah C. Malamud (Michigan), Florencia Marotta-Wurgler, Cristina Rodriguez, Robert Sitkoff (Northwestern), Jeremy Waldron (Columbia).

7.  UNIVERSITY OF CALIFORNIA, BERKELEY BOALT HALL SCHOOL OF LAW (40-49)

Gone (5):  Stephen Choi (NYU), Mark A. Lemley (Stanford), Robert C. Post (Yale), Norman Spaulding (Stanford), Oliver Williamson (retired).

New (15):  Catherine Albiston, Kenneth Bamberger, Eric Biber, Christopher F. Edley, Jr. (as Dean, from Harvard), Anne Joseph, Gillian Lester (UCLA), Goodwin Liu, Erin Murphy, Melissa Murray, Paul Schwartz (Brooklyn), Jonathan Simon (Miami), David A. Sklansky (UCLA), Eric Talley (USC), Molly S. Van Houweling, Letti Volpp (American).

8.  UNIVERSITY OF MICHIGAN LAW SCHOOL (50-59)

Gone (4):  Roderick M. Hills, Jr. (NYU), Yale Kamisar (retired, moved to San Diego), Deborah C. Malamud (NYU), Molly S. Van Houweling.

New (16):  Eve Brensike, Alicia Davis Evans, Scott Hershovitz, Jill Horwitz, James Hynes, Jr. (Michigan Business), Vik S. Khanna (BU), Douglas Laycock (emeritus, Texas), Jessica Litman (Wayne State), Edward A. Parson, John A.E. Pottow, J.J. Prescott, Margaret Jane Radin (emerita, Stanford), Steven R. Ratner (Texas), Rebecca J. Scott (Michigan History), Gil Seinfeld, Scott J. Shapiro (Cardozo).

8.  UNIVERSITY OF TEXAS SCHOOL OF LAW (60-69)

Gone (9):  Hans W. Baade (retired), Stuart Benjamin (Duke), Robert Dawson, Lee Anne Fennell, Robert W. Hamilton (retired), Douglas Laycock (retired, moved to Michigan), Neil Netanel (UCLA), Steven R. Ratner (Michigan), Russell J. Weintraub (retired).

New (10):  Bernard S. Black (Stanford), Oren Bracha, Jens Dammann, A. Mechelle Dickerson (William & Mary), John Golden, Derek Jinks, Emily Kadens, Katherine Litvak, Daniel B. Rodriguez (San Diego), William M. Sage (Columbia).

10.  UNIVERSITY OF VIRGINIA LAW SCHOOL (50-59)

Gone (11):  Curtis A. Bradley (Duke), Rosa Brooks (Georgetown), Charles E. Goetz (retired), Clarisa Long (Columbia), Anup Malani (Chicago), Jennifer Mnookin (UCLA), Chris W. Sanchirico (Penn), Elizabeth S. Scott (Columbia), Robert E. Scott (Columbia), George Triantis (Harvard), Timothy Wu (Columbia).

New (14):  Kerry Abrams, Margo Bagley (Emory), Michal Barzuza, Tomiko Brown-Nagin (Wash U/St. Louis), Albert Choi, Michael Collins (Tulane), Michael Doran, Brandon L. Garrett, Rachel Harmon, Toby Heytens, Mitchell Kane, Gregory Mitchell (Florida State), Dotan Oliar, Christopher Sprigman.

11.  UNIVERSITY OF PENNSYLVANIA LAW SCHOOL (40-49)

Gone (6):  Geoffrey C. Hazard, Jr. (phased retirement, moved to Hastings), Peter H. Huang, Bruce H. Mann (Harvard), Arti Rai, Edward L. Rubin (Vanderbilt, to become Dean), Kim Lane Scheppele (Princeton).

New (9):  Aditi Bagchi, Stephanos Bibas (Iowa), William Burke-White, Cary Coglianese (Harvard Kennedy School), Ronald Daniels (Toronto, as Provost of University), Serena Mayeri, Stephen R. Perry (NYU), Theodore Ruger, Chris W. Sanchirico (Virginia).

12.  GEORGETOWN UNIVERSITY LAW CENTER (70-79)

Gone (5):  Samuel Dash, G. Mitu Gulati (Duke), Clarissa C. Potter, Warren F. Schwartz (retired), Mark Tushnet (Harvard).

New (11):  Randy Barnett (BU), William Wilson Bratton III (George Washington), Rosa Brooks (Virginia), James Forman, Jr., Gregory Klass, John Mikhail, Nicholas Quinn Rosenkranz, Rebecca L. Tushnet, David C. Vladeck, Ethan Yale, Kathryn Zeiler.

12.  UNIVERSITY OF SOUTHERN CALIFORNIA LAW SCHOOL (40-49)

Gone (3):  Erwin Chemerinsky (Duke), W. David Slawson (retired), Eric Talley (Berkeley).

New (5):  Jonathan Barnett, Kareem Crayton, Schuel Leshem, Daria Roithmayr (Illinois), James Spindler.

14.  CORNELL LAW SCHOOL (30-39)

Gone (4):  Martha L.A. Fineman (Emory), Jonathan R. Macey (Yale), Gary J. Simson (Case Western, to become Dean), Katherine van Wezel Stone (retired, moved to UCLA).

New (7):  John Blume, Valerie Hans (Delaware), Michael Heise (Case Western), Robert Hockett, Mitchell Lasser (Utah), Bernadette Meyler, Trevor Morrison, W. Bradley Wendel.

14.  NORTHWESTERN UNIVERSITY SCHOOL OF LAW (40-49)

Gone (8):  Kenneth W. Abbott (retired, moved to Arizona State), Richard Brooks, Tracey E. George (Vanderbilt), Lawrence Marshall (Stanford), Thomas W. Merrill (Columbia), Robert Sitkoff (NYU), Richard E. Speidel (retired), Gordon Wood (Brown).

New (10):  Albert Alschuler (emeritus, Chicago), Olufunmilayo Arewa, Ronen Avraham, Lee Epstein (Wash U/St. Louis), Tonja Jacobi, Jide Nzelibe, Max Schnazenbach, Nancy Staudt (Wash U/St. Louis), Emerson Tiller (Texas Business School), Abraham Wickelgren.

14.  UNIVERSITY OF CALIFORNIA, LOS ANGELES SCHOOL OF LAW (40-49)

Gone (9):  Norman Abrams (retired), Paul B. Bergman (retired), Jody Freeman (Harvard), Laura Gomez (New Mexico), Kenneth W. Graham, Jr. (retired), Gillian Lester (Berkeley), Arthur Rosett (retired), David Sklansky (Berkeley), Susan Westerberg Prager (Occidental College, to become President)

New (12):  Steven Bank (Florida State), Mark Grady (George Mason), Mark Greenberg, Maximo Langer, Gia Lee, Jennifer Mnookin (Virginia), Neil W. Netanel (Texas), Russell Robinson, Michael H. Schill (as Dean, from NYU), Katherine van Wezel Stone (emerita, Cornell), Samuel C. Thompson, Jr. (Miami), Noah Zatz.

17.  DUKE UNIVERSITY SCHOOL OF LAW (40-49)

Gone (3):  Michael Byers (British Columbia), Jerome M. Culp, William W. van Alstyne (retired, moved to William & Mary).

New (11):  Stuart Benjamin (Texas), Curtis A. Bradley (Virginia), Erwin Chemerinsky (USC), Catherine Fisk (USC), G. Mitu Gulati (Georgetown), Jedediah Purdy, Arti Rai, Barak Richman, James Salzman (American), Neil Siegel, Lawrence Zelenak (Columbia).

18.  VANDERBILT UNIVERSITY SCHOOL OF LAW (40-49)

Gone (3):  Jonathan I. Charney, Harold G. Maier (retired), Kent Syverud (Wash U/St. Louis, to become Dean).

New (10):  Margaret M. Blair, Christopher Brummer, Nita Farahany, Tracey George (Northwestern), Laurence Helfer (Loyola-LA), Joni Hersch (Adjunct, Harvard), Owen Jones (Arizona State), Terry Maroney, Edward L. Rubin (as Dean, from Penn), W. Kip Viscusi (Harvard).

Outside the top 18, the school with the most dramatic changes since 2003 must surely be Illinois, which ranked 22nd in the 2003 survey, but would almost certainly rank higher now.

UNIVERSITY OF ILLINOIS COLLEGE OF LAW (30-39)

Gone (9):  Carlos A. Ball (Penn State), Linda M. Beale, Rene Bowser, Ellen E. Deason (Ohio State), Kit Kinports (Penn State), Richard W. Painter (Minnesota), Daria Roithmayr (USC), Stephen F. Ross (Penn State), Elaine W. Shoben (Nevada).

New (13):  Amitai Aviram, Ralph Brubaker (Emory), Lee Anne Fennell, Christine Hurt, David Hyman (Maryland), Patrick Keenan, Robert Lawless (Nevada), Andrew Morriss (Case Western), Jennifer Robbenolt (Missouri), Jacqueline Ross, Richard Ross (Wisconsin), Lawrence Solum (San Diego), Ekow N. Yankah.

I think it's fair to say that most schools have not changed much since the 2003 surveys in terms of overall faculty quality.  Schools that have probably gained some ground (not just in total numbers, but in quality) since 2003 are Yale, Michigan, Duke, Vanderbilt, Illinois and, maybe also, Harvard, NYU, Berkeley, Texas, and UCLA.  The two big stories here, I'd say, are Michigan and Duke.  Michigan, which saw its mid-level tenured ranks decimated during the 1990s to the point where its "top ten" status might have been in question, has now rebounded with an increase in faculty size, and many high quality hires.  Duke, which was probably the consensus choice among elite legal academics for the most overrated law school in America over the last decade (when U.S. News always put it in the top 15--sometimes, remarkably, even in the top 10), has made a strong series of lateral hires that now earn it a place, quite justifiably, in the top fifteen.   (Outside the top 18, I'd say that Emory, Ohio State, Arizona State, and Arizona have all gained some ground since 2003 as well.)

Schools that have probably lost some ground since 2003 would include Chicago, Virginia, USC, Cornell, and, maybe, Northwestern.

The effects of these moves will be more substantial on the rankings in the specialty areas of course.  For example, in the Business Law areas, the top five will remain the same, except Yale is likely to be up there now with Stanford and Chicago; Cornell and USC will be out of the top ten; and Texas will be squarely in the top ten.  In Constitutional Law, Yale and Harvard will still dominate everyone else, and Chicago, Texas, and NYU will still fill out the top five, while Michigan is likely to break the top ten.  In Law and Economics, Chicago, Harvard, and Yale will still dominate everyone else, Virginia may slip out of the top ten, and USC almost certainly will.  In Law and Philosophy, NYU will still clearly be #1, but now with a big gap between them and the next "top 5ish" cluster--Columbia, Texas, Yale, Penn, but also now Michigan (while Cardozo will drop out of the top ten).  I would also expect UCLA to be more squarely top ten (competitive with, e.g., Illinois and Berkeley), rather than borderline, as it was in 2003.  In Law and the Social Sciences, Northwestern should certainly join the "top five," but otherwise there probably won't be much change.

Next Spring, we'll find out whether these assessments are correct or not.  I invite non-anonymous comments from others, including corrections or additions to the information above.  Thanks.

UPDATE:  A reader suggests, probably correctly, that Minnesota should also be noted as a school outside the top 18 that has had a net gain in faculty quality since 2003.  Although the school suffered some significant losses (e.g., Donald Dripps and David McGowan, who moved to San Diego), the school also had a net gain of about ten faculty, and made some strong lateral hires as well, including Fionnuala Ni Aolain from Ulster, Richard Painter from Illinois, and Francesco Parisi from George Mason, among others.

AND ANOTHER:  Another reader mentions George Washington, which also had a net gain of faculty, with several notable laterals, including Michael Abramowicz from George Mason and John Duffy from William & Mary, among others.  I invite faculty to post similar rosters of gains and losses for other faculties in the comments; you must do so non-anonymously.

Law Blog Headlines...

...are available at this useful site.

Supreme Court Clerkship Placement 1996 through 2006 Terms

Here.  From the introduction:

Earlier studies of Supreme Court Clerkship placement covered a longer period of time (1991-2005); this study covers the past decade, and so permits some sense of which schools are increasing their success at securing Supreme Court clerkships for their best graduates, and which are having less success.

NYU, Notre Dame, and BYU (the latter due to Alito) have increased their success at clerkship placements noticeably, while Michigan, Duke, and Penn all slipped noticeably.

Visiting Professors, 2006-07

MOVING TO FRONT FROM JULY 10 (with a couple of corrections, but mostly so those who missed it during the summer might see it)

Below are listed visiting professors at the top six law schools by almost all measures of faculty quality--which are the schools that also typically have the most visiting professors on a regular basis.  While many visiting stints are made with an eye to possible permanent appointment, not all are; some are so-called "podium" visits, which aim to fill an immediate teaching need at the school. (Harvard, among these six, relies quite a bit on such visitors.)  Often visitors from local schools in the area are invited for that purpose--though some "locals" may also be "look-see" visitors, i.e., under consideration for appointment.  NYU also has a fair number of "enrichment" and "global" visitors, well-known senior folks who are keen to spend some time in NYC (especially if the rest of the time they have to be in New Haven!), but who aren't necessarily interested in, or being considered for, lateral moves.  (Columbia gets some of these folks too.)  From the outside, of course, it's very hard to tell all these apart, so here, without further comment, are the visiting professors for 2006-07; please e-mail me about omissions or corrections, and I will update the list at various intervals over the next couple of weeks.

Yale Law School

Stuart Banner (UCLA)

Michael Doyle (Columbia)

Pamela Karlan (Stanford)

Michael Klarman (Virginia)

William LaPiana (New York Law Sch.)

Sanford Levinson (Texas)

Austin Sarat (Amherst)

Alex Stein (Cardozo)

David Super (Maryland)

Edward Zelinsky (Cardozo)

Harvard Law School

(Some of these are only visiting profs in the short Winter Term in January)

Jennifer Arlen (NYU)

Richard Banks (Stanford)

Francesca Bignami (Duke)

Stephen Burbank (Penn)

Sarah Cleveland (Texas)

Daniel Coquillette (Boston College)

Allison Danner (Vanderbilt)

Shari Seidman Diamond (Northwestern)

Sarah Barringer Gordon (Penn)

Stephen Holmes (NYU)

David Hunter (American)

Derek Jinks (Texas)

Ehud Kamar (Southern California)

Linda Hamilton Krieger (Berkeley)

Sanford Levinson (Texas)

Lynn LoPucki (UCLA)

Anup Malani (Chicago)

Caleb Nelson (Virginia)

Martha Nussbaum (Chicago)

Eduardo Penalver (Cornell)

Robert C. Post (Yale)

Arti Rai (Duke)

William Rubenstein (UCLA)

James Ryan (Virginia)

Louis Michael Seidman (Georgetown)

Catherine Sharkey (Columbia)

Reva Siegel (Yale)

Katherine Silbaugh (BU)

William Simon (Columbia)

Robert Sitkoff (NYU)

David Spence (Texas [Business School])

Cass Sunstein (Chicago)

Gerald Torres (Texas)

Richard Vann (Sydney)

Jonathan Zittrain (Oxford)

Stanford Law School

Robin Feldman (UC Hastings)

F. Scott Kieff (Wash U/St. Louis)

Kenneth Manaster (Santa Clara)

Ayelet Shachar (Toronto)

Christopher Slobogin (Florida)

University of Chicago Law School

Nicole Garnett (Notre Dame)

Richard Garnett (Notre Dame)

Hideki Kanda (Tokyo)

Orin Kerr (George Washington)

Eugene Kontorovich (George Mason)

Andrew Koppelman (Northwestern)

Brian Leiter (Texas)

Jens Ludwig (Georgetown, Public Policy)

Ariel Porat (Tel Aviv)

Jonathan Wiener (Duke)

Columbia Law School

Tom Baker (Connecticut)

Richard Brooks (Yale)

Fabrizio Cafaggi (Eur. Univ. Inst.)

Melvin Eisenberg (Berkeley)

Ronald Mann (Texas)

Joanne Scott (Univ Coll London)

Suzanne Last Stone (Cardozo)

James Whitman (Yale)

New York University School of Law

Omri Ben-Shahar (Michigan)

Neil Buchanan (Rutgers-Newark)

Charles Cameron (Wilson School, Princeton)

Bruce Green (Fordham)

Leslie Green (Osgoode/Texas)

Michael Harper (BU)

Robert Kagan (Berkeley)

Mitchel Lasser (Cornell)

Christopher Leslie (Chicago-Kent)

Arthur Miller (Harvard)

R. Anthony Reese (Texas)

Daniel Rubinfeld (Berkeley)

Catherine Sharkey (Columbia)

Geoffrey Stone (Chicago)

James Whitman (Yale)

Kenji Yoshino (Yale)

Kathryn Zeiler (Georgetown)

What Factors Hurt a Teaching Candidate's Prospects?

A law professor writes:

In the spirit of your post on factors that count most (in favor) of a candidate, it might be time to talk about what will hurt a candidate most.  And I think one of those is being from a “lesser” school in the same geographic market.  I’ve seen a number of instances where someone from another school in the same geographic market (usually the same city or state) is passed over by a neighboring school.  I think that’s because it would validate the neighboring school.  I can’t tell if this kind of prejudice is getting worse or not, but I think it exists.  Sometimes the prejudice manifests itself in assessments that another’s scholarship is weaker than it actually is; at other times, the prejudice is even bolder, as in “no one at ___ is worth hiring.”  I think that’s unfortunate, but a fact of life.

Before weighing in, I'm curious to hear what others think.  This correspondent mentioned one other factor that I'll turn to in a separate post.  Non-anonymous comments are far more likely to be approved.

From Legal Realism to Naturalized Jurisprudence

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 20^th-century American legal practice and scholarship,[1] 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.[2] Academic lawyers who tried to intervene[3] in some ways made matters worse in virtue of having a tin ear for philosophical questions and problems.[4] Other academic lawyers were content to offer useful intellectual histories of Realism, without regard for what was jurisprudentially significant.[5] 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 law.

Some 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 20^th-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.[6]

---

[1] 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.

[2] 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 courts.

[3] I am thinking especially of Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca: Cornell University Press, 1982).

[4] 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).

[5] 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.

[6] Chapters 1 and 2 try to make that case.

"Originalism Redux" Redux (with a reply to Solum)

I notice that several of the law blogs are busy talking about "originalism" again.  Accordingly, I thought it might be timely to remind folks that originalism, the reigning pathology of American constitutional law, is the theory of constitutional interpretation without any theoretical justification.  I am confident that this little problem will not dissuade any of the faithful.

UPDATE:  I confess to being puzzled by Larry Solum's puzzlement, but shall try my best to clarify the question.  In my original post, I wrote (this was not a part Professor Solum quoted):

[T]he fundamental question is why a particular meaning has a justfied claim of authority over us, i.e., why we should comply with that way of construing the meaning rather than some other.  It is very hard to answer this question without some explicit account of what confers normative authority. 

The problem with originalism is that it has no answer to this "fundamental question" because originalists don't grapple with the question of normative authority; indeed, they don't even seem to recognize it as a question!

To be committed to constitutionalism is to be committed to be bound by the meaning of the words in a foundational social and political document of some kind.  Constitutionalism itself requires an account of its normative authority, and it is possible such an account would entail originalism.  I am not aware of a compelling account of this kind offered by originalists, but surely if there is one, someone can articulate it or reference it. 

Barring that approach, the commitment to constitutionalism does not settle the question of how the meaning of the foundational text is to be ascertained.  As I, again, put it in the original posting:

Those who would supplement constitutionalism with originalism need to explain why the original meaning or intentions are authoritative

Why, in other words, is an originalist way of fixing meaning authoritative? Why not the plain meaning?  Why not the morally best sense we can make of the plain meaning or the original intent at a suitable level of abstraction?  Why not the accumulated meanings that have accreted to the text over the course of its institutional history as it is interpreted, debated, amended, and applied?  In fact, as all lawyers know, the courts help themselves to all these approaches at different times.

Originalists often act--this may be the subtext of Larry Solum's puzzlement--that originalism is the default or unavoidable position. But that is nonsense, and that it is not recognized as such is one of the reasons why I describe originalism as the "reigning pathology" of current constitutional scholarship. As I noted in the original posting, I have heard originalists express the view that to interpret a constitution is necessarily to interpret its original meaning.  This is false, and not only as a conceptual matter:  Canadians have a constitution, but originalism is barred as an interpretive method.  Other originalists have claimed that all meaning is a matter of intentions, and therefore, the constitutional text has no meaning apart from what its framers intended.  But this is also false, since intentions themselves are mental states with semantic content, therefore it follows that not all meaning (or semantic content) is a matter of intention.  Originalists could dodge the question of normative authority if it were really true that ascertaining the meaning of a text is necessarily a matter of ascertaining its "original" meaning.  But this, alas, isn't true.

What Advice for Student Bloggers Starting Law School?

A Pitt law professor seeks ideas.