April 11, 2024

"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."

April 11, 2024 in Jurisprudence | Permalink

December 05, 2023

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.

December 5, 2023 in Jurisprudence | Permalink

October 05, 2023

"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.

October 5, 2023 in Jurisprudence | Permalink

September 11, 2023

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!

September 11, 2023 in Jurisprudence, Of Academic Interest | Permalink

March 27, 2023

"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.


March 27, 2023 in Jurisprudence | Permalink

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