Brian Leiter's Law School Reports

Books

Forgive the navel-gazing here, but perhaps some readers will be interested in some of the three books of mine that have appeared this year.

(1)  Marx, co-authored with Jaime Edwards, has just appeared.   Here's what the political philosopher Allen Buchanan (emeritus, Duke University; Laureate Professor, University of Arizona; author of Marx and Justice:  The Radical Critique of Liberalism [1982], among many other books) had to say about it:

A tour de force. Not only the best available introduction to Marx’s thought and to post-Marx Marxist theories, but also of interest to specialists. The organization is excellent, and the writing is always clear and jargon-free. It covers all the main topics that a book on Marx should address. It is remarkably fair and balanced, sympathetic to Marx’s ideas, but also appropriately critical of them.

You can read other reactions to the book here, including a lengthy excerpt from a referee report that gives a good sense of the volume.

(2) The fifth volume of Oxford Studies in Philosophy of Law, which I edit with Leslie Green, will be available next month.  It includes new essays on philosophy of tort, criminal, and international law; on French legal realism and Bulygin's jurisprudence; and a variety of topics in general jurisprudence.  The authors are an international group of scholars from New Zealand, Singapore, France, Argentina, the U.K., as well as the United States.

(3)  For any Spanish readers, Teoría del derecho realista:  Ensayos selectos is a Spanish translation by the Mexican legal philosopher Francisco M. Mora-Sifuente of eight of my articles on realist jurisrpudence and related themes; it includes a new preface by me, and an introduction to my work by Dr. Natalia Scavuzzo from the University of Genoa (the leading center of Italian legal realism).  The book was published earlier this year by Zela Grupo Editorial, the leading South American publisher of legal philosophy.  (The essays translated are:  "What is a Realist Theory of Law?"; "Legal Realism and Legal Doctrine"; "Legal Realisms, Old and New"; "In Praise of Realism (and Against 'Nonsense' Jurisprudence)"; "Explaining Theoretical Disagreement"; "Constitutional Law, Moral Judgment and the Supreme Court as Super-Legislature"; "The Roles of Judges in Democracies:  A Realistic View"; and "The Paradoxes of Public Philosophy.")

"How to Cabin the Realist Indeterminacy Thesis: On Green, Positivism, and the Sources of Law"

The penulimate version on SSRN, for a volume that OUP will publish on the legal philosophy of Leslie Green.  The abstract:

Leslie Green raised an important challenge to my reconstruction of the American Legal Realist (ALR) arguments for the indeterminacy of law and legal reasoning:  how can those arguments be limited, as I claim, to mostly appellate cases?  The key, I argue, is to recognize that (1) the central ALR argument for indeterminacy appeals to the existence of equally "legitimate" but conflicting ways of interpreting valid sources of law, and (2) the relevant notion of "legitimacy" is sociological (i.e., what is actually accepted by lawyers and judges).  The ALR argument for indeterminacy being most apparent at the appellate level is then an empirical claim, which the ALRs supported with extensive evidence in many areas of law.  I also consider Green's suggestion that ALR takes most sources to be "permissive sources" (in Hart's sense), and criticize some misunderstandings of both ALR and Scandinavian Realism. 

"Law is a Moral Practice"

I review a recent book of legal philosophy.  

My review itself has been favorably reviewed by UCLA lawprof Steve Bainbridge on Twitter: "The opening line of @BrianLeiter's review is worth the price of admission. If more law professors wrote with his flair, legal scholarship would be a lot more entertaining. His range from rapier to saber to battleaxe is remarkable."

Law & Philosophy Fellowship at UChicago for 2024-25

The full ad (and application links) are here.  Here's the basic description (please note the Workshop theme, it's essential that the candidate be able to contribute to that, even if the dissertation was on a different topic):

The University of Chicago Law School seeks a Law and Philosophy Fellow, appointed with the rank of Lecturer, for the academic year 2024-25. This is a twelve-month appointment and is expected to begin July 1, 2024. A Ph.D. in philosophy—with fulfillment of all substantial requirements (including successful defense of dissertation) by appointment date—is required. In unusual cases, a Ph.D. in a related discipline, or a J.D. accompanied by strong training in philosophy, will be considered. Applications welcome from new or recent PhDs or tenure-stream faculty interested in spending a year at the Law School. The Fellow will co-teach the Law & Philosophy Workshop with Brian Leiter on the theme of “The Philosophy of Legal Realism.” AOS:  Philosophy of law (the dissertation does not need to be on legal realism, but the successful candidate must demonstrate knowledge of legal realism at least in the American tradition).  AOC:  open.  The Workshop will meet approximately 10 times over the course of the academic year, with several sessions devoted to discussing with students classic works by Cardozo, Llewellyn, and Levi, and other sessions devoted to visiting speakers presenting works related to legal realism.  The Fellow will also be asked to supervise student papers and to contribute to the intellectual life of the Law School, as well as pursue his or her research. Salary $65K benefits superb research environment.

Our current Fellow is Alma Diamond; past Fellows include Justin Coates, Amanda Greene, Sarah Conly (who combined her Fellowship with a sabbatical), Ben Laurence, and Adam Hosein, among others.  Please email me with questions.

"Politics by Other Means: The Jurisprudence of 'Common Good Constitutionalism'"

It's now in print at University of Chicago Law Review.  I hope this review establishes decisively that there is no "there" there, as it were.

A student Law Review Comment that solves a standing puzzle in First Amendment doctrine

Richard Stillman, a 3L here (with a PhD in philosophy), has just published a quite ingenious solution to the puzzle of what the Court's test is for nonverbal "expressive" conduct, involving a judicious use of some philosophy of language.  Free speech scholars should read this!

"The Epistemology of the Internet and the Regulation of Speech in America"

When I first posted this paper on SSRN, it generated a lot of interest; for those still interested, it's now out in a symposium issue of Georgetown Journal of Law & Public Policy.

 

"Politics by Other Means: The Jurisprudence of 'Common Good Constitutionalism'"

This forthcoming essay may interest some readers; the abstract:

Adrian Vermeule proposes an alternative to the two dominant schools of constitutional interpretation in the United States: originalism and “progressivism” (i.e., “living constitutionalism”). Against these approaches, he argues courts (and other institutional actors) should explicitly interpret the text of the Constitution, statutes, and administrative decrees with an eye to promoting the “common good” as understood in what he calls the classical tradition, meaning that it should be understood in distinctly non-utilitarian and non-individualist terms. Officials should do so using something like Dworkin’s method of “constructive interpretation” (hereafter CI), in which the aim is to reach the decision that would follow from legal principles that enjoy some degree of explanatory “fit” with prior official acts (court decisions, legislation, etc.), but in which the inevitable explanatory gap is filled by reliance on those principles that provide the best moral justification for the institutional history of the legal system. For Vermeule, those moral principles are ones that embody the natural law’s idea of the “common good” rather than (as he puts it) Dworkin’s “moral commitments and priorities…which [are] of a conventionally left-liberal and individualist bent.”

I argue that: (1) Vermeule’s conception of the “common good” is neither plausible, nor even defended, except by misleading appeal to a supposed “natural law”; unfortunately (2) there is no reason to think a “natural law” exists, and, in any case, the “natural law” tradition does not speak univocally on what constitutes “principles of objective natural morality (ius naturale)” contrary to the misleading impression Vermeule gives; and (3) Dworkin’s CI is not so easily severed from his moral commitments, and in any case, Vermeule never gives a reason to think it provides (even on Vermeule’s preferred version) a more plausible account of what courts and agencies have been doing than the legal positivist view of law, which he mostly misunderstands and consistently maligns. In the absence of any serious jurisprudential foundations, Vermuele’s so-called “common good constitutionalism” is just “politics by other means,” or, as Judge Pryor put it, “Living Common Goodism.”

CFP for the conferences in honor of Joseph Raz...

...at King's College, London and Columbia Law School.

Etchemendy on "Legal Realism and Legal Reality"

This is the best paper on legal realism to appear in a law review in many, many years.  It's telling about the unreliability of the student-edited law reviews that a paper of this caliber should appear in the Tennessee Law Review (kudos to them for picking it up), while much weaker articles have appeared in Texas Law Review, California Law Review, and other more prominent reviews.  (Equally disappointing are pieces that rehash points I made a quarter-century ago, and try to make them look new by completely misrepresenting my prior work--but the uneven and often irresponsbile scholarship on legal realism is a story for another day!)

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