Brian Leiter's Law School Reports

Bureau of Labor Statistics: another strong year for legal employment and incomes

Details here.

"Justifying Academic Freedom: John Stuart Mill and Herbert Marcuse Revisited"

A new draft paper that may be of interest to some readers; the abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.

Next Dean at Berkeley?

Candidates include (at least) Erwin Chemerinsky (UC Irvine), Laura Gomez (UCLA), and Kimberly Yuracko (Northwestern).

"Naturalism in Legal Philosophy" revised and updated at Stanford Encyclopedia of Philosophy (SEP)

It's also now co-authored with Max Etchemendy, our Law & Philosophy Fellow this year at Chicago.  SEP is a uniquely excellent on-line resource; I commend it to readers looking for high-level introductions to almost any topic in philosophy.

 

Who is paying the defense attorney fees for one of the accused in the Markel murder?

The state wants to know, the defense lawyers don't want to say.  Anyone know how unusual such requests are and what the rules are in Florida governing disclosure?

"The Roles of Judges in Democracies: A Realistic View"

A new paper that might be of interest to some readers; the abstract:

What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.

Hemel & Herzig in the NY Times on efforts to repeal Obamacare (Michael Simkovic)

Daniel Hemel and David Herzig argue in the New York Times that a Republican plan to replace a tax penalty paid by the uninsured under the Affordable Care Act with a penalty paid directly to insurance companies after a gap in coverage could thwart Republican efforts to repeal Obamacare using budgetary reconciliation procedures.

Spring Break hiatus

There probably won't be too much new until the end of the month, though I'll try to put up anything time-sensitive.

University of Florida embarrasses itself...

...by promoting random movement in the "overall" US News rank as meaningful, rather than noise.  This only came to my attention because their PR office actually sent it to me!  They should do some research about whom they send this stuff too!  What's especially unfortunate about press releases like this is that it legitimizes the US News metrics, which can only come back to haunt schools when the "overall" nonsense number moves in the opposite direction for no discernible (or, in any case, meaningful) reason.

UPDATE:  More superficial reporting, treating random movements as having meaning, or as worthy of note.  95% of movement in the US News "overall" rank is attributable to schools puffing, fudging or lying more than their peers in how they report the data to US News (or the reverse, for schools that drop); US News, recalls, audits none of the self-reported data.

Criminal case against Minnesota law professor Francesco Parisi falling apart

First, bail was reduced from $500,000 to $3,000, and now the criminal charges are about to be dropped.  I would imagine Professor Parisi will have a good defamation action against the accuser.  Do see the comments by the lawyer involved in the property dispute between Parisi and his accuser:   this lawyer "believes the criminal allegations were being used to defame and retaliate against Parisi."

UPDATE:  It's official, all charges against Parisi have been dropped, but not until he had to spend three weeks in jail!  Unbelievable, I imagine Professor Parisi will explore his legal options against the local authorities.