July 25, 2019

"Legal Positivism as a Realist Theory of Law"

This is essentially the final version (minus some citations and formatting) that will appear in The Cambridge Companion to Legal Positivism, which will probably be out in 2020 (and is being edited by Patricia Mindus [Uppsala] and Torben Spaak [Stockholm]).


July 25, 2019 in Jurisprudence | Permalink

July 09, 2019

It's time to end life tenure on the U.S. Supreme Court

May 29, 2019

Seminars on my realist jurisprudence at the EHESS in Paris in June

I'll be giving a series of seminars (in English) on my realist jurisprudence at the EHESS in Paris in June; the syllabus/plan for the seminars is here: Download Leiter Seminar Syllabus EHESS June 2019

The seminars are open to interested faculty and graduate students in and around Paris; you should contact Prof. Otto Pfersmann if you want to attend for more details about the times and location (I believe each seminar is from 16:00-18:00 on the Tuesdays noted).


May 29, 2019 in Jurisprudence | Permalink

February 21, 2019

France punishes tax evasion 100 times more harshly than the U.S. (Michael Simkovic)

A French court recently ordered Swiss Bank UBS to pay a penalty of 4.5 billion Euros (equal to about $5.1 billion U.S. Dollars) for allegedly facilitating tax evasion.  The U.S. fined UBS only $780 million for similar charges in 2009 (the equivalent of $890 million in today's dollars).

To put this into context, France's GDP is about 13.4 percent of U.S. GDP, and France has proportionately fewer ultra-high net worth individuals (only 6.5 percent as many billionaires, who on average are less wealthy than billionaires in the U.S.).  Thus, scaled by number of billionaires, France fined UBS more than 100 times as much as the U.S. fined UBS for facilitating tax evasion (scaled by GDP, nearly 50 times as much). 

The U.S. fined Credit Suisse around $2.5 billion in 2014, which makes France's UBS penalty still proportionately around 33 times harsher than the recent U.S.-Credit Suisse settlement.

France, Italy, Spain, the UK, Sweden,Greece, Ireland, Bulgaria, Israel, Jordan and the Netherlands are facing popular protests over regressive tax policies that protestors say excessively favor the rich over the middle and working class.  Protests in France were set off by repeal of wealth taxes and other regressive tax policies, social spending cuts, and loosening labor protections.  

UPDATE 2/25: This article was corrected to reflect that fact that the U.S. fined UBS $780 million in 2009, not $78 million as was reported in the Financial Times story linked above.  Additional context about a Credit Suisse settlement was provided.  Thanks to Pierre-Hugues Verdier (UVA) for pointing out the error.

 


February 21, 2019 in Guest Blogger: Michael Simkovic, Jurisprudence, Legal Profession, Of Academic Interest | Permalink

December 19, 2018

Samuel Moyn (Yale): Law schools are too focused on public law to serve the public interest (Michael Simkovic)

In a thought provoking essay in the Chronicle of Higher Education, Professor Samuel Moyn argues that law schools' focus on judge made law in general, and the Supreme Court in particular, is counterproductive especially when justified on ostensibly progressive grounds.  Offline, Professor Moyn suggested that, to better help students understand how the legal system influences the distribution of economic and political power, progressives should focus more on teaching business law subjects like taxation and anti-trust.

Samuel Moyn, Law Schools Are Bad for Democracy: They whitewash the grubby scramble for power, Chronicle of Higher Education, Dec. 16, 2018.


December 19, 2018 in Faculty News, Guest Blogger: Michael Simkovic, Jurisprudence, Law in Cyberspace, Of Academic Interest, Weblogs | Permalink

March 14, 2018

"Academic Freedom and the Obligations of University Administrators" especially regarding faculty speech

MOVING TO FRONT FROM MARCH 12:  UPDATED    

This talk (sparked by this incident) that I gave at Columbia Law School last fall is now on-line, for those who might be interested.

A different wrinkle on this issue is presented by the new allegations that Prof. Amy Wax (Penn) has disparaged the academic performance of African-American students at her law school.   Here academic freedom affords her no protection:  any identifiable group of students at a school has a right not to be openly disparaged for its competence by faculty or administrators at their institution, and the Administration should both correct the record and would be within rights, in my view, to take disciplinary action against Prof. Wax (I do not think this is an offense justifying termination, but lesser disciplinary steps would be warranted).  Think of it in Pickering terms:  faculty disparagement of some identifiable portion of the student body interferes with the school's core functions, including helping members of the disparaged group find suitable employment upon completion of their education.   (Contrary to the letter from the Penn alumni and students, it is not clear to me that Prof. Wax's statements violate the "anonymous grading policy," if the Penn one is like that at most schools:   exams are marked without knowing the student's identity, but after the grades are turned in, the professor learns how each student performed.  On the other hand, students have a reasonable expectation and entitlement, perhaps even protected by FERPA [I'm less sure about that], not to have their academic performance disclosed to third parties by the faculty member.)

UPDATE:  Is Prof. Wax the Ann Coulter of the legal academy?  Her colleague Tobias Wolff comments.

ANOTHER:  Penn's Dean Ruger has removed Prof. Wax from teaching required 1L classes.  As a punitive measure, that seems rather mild, given the breach of professional obligations involved, but perhaps he is taking other actions as well.   A good line from Dean Ruger's statement:

Our first-year students are just that – students – not faceless data points or research subjects to be conscripted in the service of their professor’s musings about race in society.


March 14, 2018 in Jurisprudence, Of Academic Interest, Professional Advice | Permalink

January 30, 2018

How Democracy Dies: A Case Study of Poland

In light of the current interest in the general topic, many readers will find Professor Sadurski's knowledgeable discussion of the situation in Poland illuminating and instructive.

(Thanks to Tomasz Gizbert-Studnicki for calling it to my attention.)


January 30, 2018 in Jurisprudence, Of Academic Interest | Permalink

January 24, 2018

"Multi-level marketing" and "pyramid schemes"

Retired attorney Bruce Craig would welcome hearing from law professors interested in the following issue (you may reach Mr. Craig at brucecrai-at-gmail-dot-com):

As a former assistant attorney general (Wis.) I litigated against a number of pyramid schemes starting in 1968 and ending, for all practical purposes, in 1979 when the FTC ruled in favor of Amway. Now retired,  living in New York, and still involved with this issue to a limited extent.

 

Since 1979, and Reagan, Amway has become a $9 billion/yr world-wide operation, the overall industry's annual revenues about $150 billion. Qualified estimates indicate that the loss ratio of participants in these operations exceeds 95%.

 

Not only has this made the pyramid owners billionaires but, as a direct result, it has also funded a political and governmental machine that has fundamentally suppressed any meaningful enforcement or legislative oversight. This is primarily the result of the victims of these schemes being politically invisible to both sides of the aisle and ignored on the basis they didn't work hard enough. Victims seldom file complaints as they feel they were part of an illegal process and involved family members and friends.

 

The press has primarily focused on disputes between Wall Street titans and not on the ethical and legal underpinnings which have enabled this to happen. Unfortunately, it appears the legal academia has not examined this as well.

 

At present, there is no formal legal distinction between pyramid schemes and "Multi-Level Marketing", with limited enforcement only after the fact. This phenomenon has enabled those not yet sued to claim they are legal MLM and not illegal pyramid schemes. 

 

Given the significant and continuing massive losses, incurred by those mostly in the lower part of the middle class.  This note is to inquire whether legal scholars might be interested in exploring the issue. From a philosophical standpoint I've noticed that the investment and financial communities seem to ignore the underlying damage caused by those listed on the NYSE.

This is far beyond my competence, but I offered to share this with the community of legal scholars and legal theorists, some of whom might be able to help.


January 24, 2018 in Jurisprudence, Legal Profession | Permalink

December 05, 2017

Why academic freedom?

Once again into the fray.  A brief excerpt from the paper:

The main threats to academic freedom in the natural sciences in the capitalist democracies come from powerful business interests that disfavor, for profit-seeking reasons, certain discoveries:   for example, concerning the human contribution to climate change, to take the most important example in the present, but also findings about the inefficacy of particular pharmaceuticals and medical treatments.   Businesses have a strong interest in the correct natural scientific understanding of the causal order of nature, to be sure, since the extraction of profit from nature requires it.  At the same time, businesses also have strong interests in concealing certain scientific results that might impede popular acceptance of their business practices and consumption of their products.  Academic freedom is a crucial bulwark in favor of discovering truths about the natural world even in the relatively free capitalist societies.

 

In the human sciences, the issues are usually different:  it is, shall we say, rare for international corporations to get exercised about the latest developments in the history of early modern Europe or philosophy of the social sciences.  The threats to academic freedom in the human sciences come less from the business sector, and more often from political and religious interest groups whose normative commitments are threatened by the findings of the human sciences.   In the United States, for example, external pressure is frequently brought upon universities who try to employ critics of Israeli policy towards the Palestinians.[1]   But the pressure to violate academic freedom comes from within the universities too.   Indeed, some humanists have concocted a whole new metaphysics of “silencing” and “marginalizing” and “violence” to describe the expression of ideas that are offensive and insulting to certain minority groups.  For these academic insiders, Marcusian “indiscriminate” toleration in academic discourse is not acceptable, since the expression of ideas that might be hurtful to individuals based on group membership—in particular, membership in groups that have been victims of historical practices of subordination (e.g., African-Americans in the United States, though more recently, transgender individuals)—is alleged to “silence” members of that group and do “violence” to them.   

Continue reading


December 5, 2017 in Jurisprudence | Permalink

November 22, 2017

Langdell, formalism, and realism at Harvard

Here's a video of the session from a couple of weeks ago as part of the HLS bicentennial.  Opening remarks about Langdell are by John Goldberg (Harvard), who is followed by Catherine Wells (Boston College), me, Anthony Sebok (Cardozo), and Henry Smith (Harvard).  For those interested, my remarks on "Langdell, Wissenschaft, Realism" begin at 19:20.  I found Smith's remarks about the role of a firmer law/equity distinction in Langdell's views especially interesting.


November 22, 2017 in Jurisprudence | Permalink