January 05, 2023

"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.”


January 5, 2023 in Jurisprudence | Permalink

October 18, 2022

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

October 17, 2022

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!)

Continue reading


October 17, 2022 in Jurisprudence | Permalink

October 07, 2022

"Alf Ross's Critique of American Legal Realism--and a Naturalistic Critique of Ross"

This draft paper (for a conference on Scandinaivan Legal Realism later this month at York) may interest some readers; the abstract:

The new edition (by Jakob Holtermann and Uta Bindreiter) of Alf Ross’s seminal work ON LAW AND JUSTICE presents an opportunity to reevaluate Ross’s contribution to a naturalistic jurisprudence, as well as the relation of Scandinavian to American Legal Realism. I show that Ross rejects both of the main forms of American Legal Realism (Frank’s “idiosyncrasy” wing, and Llewellyn’s “sociological” wing), thus confirming, as I have argued previously, that Scandinavian and American Legal Realism have almost nothing in common. I also argue, however, that Ross’s commitment to (1) verificationism, and (2) the “Kelsenian dogma” that laws are directives to judges, creates serious problems for his naturalistic theory of law, ones that H.L.A. Hart’s theory (even allowing for Hart’s mistakes about Ross’s view) can avoid while still satisfying the generic naturalistic demand not to invoke entities or explanations inconsistent with the empirical sciences.


October 7, 2022 in Jurisprudence | Permalink

October 05, 2022

What is the difference between the Warren Court and the Roberts Court?

To read this, one might think it was that the latter, unlike the former, pursues partisan political objectives.  By contrast, I would have thought the difference is that the former pursued worthy and valuable moral and political objectives, while the latter generally does not.  See generally.

It's often said "we're all realists now," but it's not clear that's true of the constitutional law professors quoted in that article.


October 5, 2022 in Jurisprudence, Of Academic Interest | Permalink

July 01, 2022

"Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature" (2015)

Recent events are making this assessment ever more relevant, sad to say.


July 1, 2022 in Jurisprudence, Of Academic Interest | Permalink

May 25, 2022

Legal realism and the Supreme Court

I talk with Prof. Eric Segall (Georgia State) on his podcast "Supreme Myths" (also available on Spotify and other podcast platforms).


May 25, 2022 in Jurisprudence | Permalink

February 27, 2022

"Anglophone Analytic Legal Philosophy"

This paper might be of interest to some readers; the abstract:

This essay examines Anglophone analytic legal philosophy in comparison to Professor Aldo Schiavello's account of Italian (and also, more broadly, non-Anglophone) analytic legal philosophy (in the same volume). The focus, in particular, is on legal positivism in H.L.A. Hart, Norberto Bobbio, and Alf Ross, and some of their striking shared commitments--especially, to methodological positivism (the idea that general jurisprudence can describe what the law is, without taking any position on what it ought to be). Methodological positivism is defended against a variety of objections raised by Schiavello.


February 27, 2022 in Jurisprudence | Permalink

January 31, 2022

"Realism about Precedent"

This paper may interest some readers; the abstract:

In jurisdictions with a doctrine of precedent, later courts are bound only by those earlier decisions which are “on point” or “the same in relevant respects” to the case currently before the court.  Since cases are never identical in all particulars, this always requires figuring out which general categories that subsume the particulars of different cases are the relevant ones:  I will call this “relevant similarity” in what follows.  Relevant similarity is typically assessed in light of either the reasons the earlier court actually gave for the decision or the reasons that can be imputed to the earlier court based on the legal decision that court reached.  Realists about precedent—from Karl Llewellyn to Julius Stone to this author—are skeptical that precedent really binds courts.  Realists are skeptical not because they believe judges improperly disregard binding precedents; the worry, rather, is that judges can often properly distinguish precedents that might impede the decision they want to reach on moral or political grounds.  They can do so precisely because judgments of “relevant similarity” that are central to distinguishing are largely unconstrained by law.   First, such judgments depend on inchoate and sometimes unconscious norms that govern general classifications of particulars, about which reasonable people can and do differ, and about which the law is mostly silent.  Second, given the range of permissible characterizations of the earlier court’s reasons in many instances, the requirement that the judgment of relevant similarity or difference be consistent with those reasons imposes only a limited constraint on the general classification employed. 


January 31, 2022 in Jurisprudence | Permalink

January 10, 2022

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

The final version of the paper (which will appear in a symposium issue of the Georgetown Journal of Law & Public Policy) is now on SSRN.   I've been gratified by the interest this paper has already attracted, and how useful many legal scholars, especially, have found the notion of epistemic authority.  Here is the abstract:

The Internet is the epistemological crisis of the 21st-century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Instead, we rely on epistemic authorities—biologists and historians, for example. Epistemic authority cannot be sustained by empiricist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The Internet has obliterated the intermediaries who made that possible (and, in the process, undermined the epistemic standing of experts), while even the traditional media in the U.S., thanks to the demise of the “Fairness Doctrine,” has contributed to the same phenomenon. I argue that this crisis cries out for changes in the regulation of speech in cyberspace—including liability for certain kinds of false speech, incitement, and hate speech--but also a restoration of a version of the Fairness Doctrine for the traditional media.


January 10, 2022 in Jurisprudence | Permalink