June 16, 2020
A special journal issue of solicited contributions at Iuris Dictio, a law journal from Ecuador. Some, but not all, of the essays are in English. Besides my own essay, there are contributions by the leading figures in contemporary Italian and French legal realism (Riccardo Guastini and Michel Troper, respectively).
April 29, 2020
This article of mine is now out in the Journal of Institutional Studies, edited by faculty at the Federal University of Rio de Janeiro, for those who might be interested. (Most articles in Portuguese, but mine appears in English. A Spanish translation will also appear this year in Revista Iuris Dictio in Ecuador.)
April 27, 2020
Larry Solum's Legal Theory Lexicon is a useful resource, although I don't always agree with all its entries. This one on the "realist" critique of formalism is really just a description of the argument in one paper by Felix Cohen. It's a fine description of the argument in that paper but it is not representative of legal realism. (On formalism and realism, with reference to Brian Tamanaha's confused and misleading treatment, see also.)
April 02, 2020
[O]ne can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
This approach should take as its starting point substantive moral [sic] principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality [even wrong ones, apparently!], and that the promotion of morality is a core and legitimate function of authority...
[C]ommon-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being....
The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
One hopes this does not mark the arrival of a "Harvard School" of constitutional fascism!
February 21, 2020
...as described by my colleague Will Baude also explains exactly what makes the AALS annual meetings so worthless from an intellectual point of view. The annual Analytic Legal Philosophy conferences used to be good in this way too for the first ten years or so, although not so much anymore unfortunately.
January 10, 2020
September 24, 2019
As a student at Harvard Law School fifteen years ago, Lawrence VanDyke (Trump's nominee) published an incompetent apologia for Intelligent Design creationism, under the guise of a "review" of a book shilling for creationism, in the Harvard Law Review. I excoriated it on my philosophy blog, while further efforts by Mr. VanDyke to defend himself only resulted in his digging his hole deeper.
Of course, an intellectually disgraceful book review fifteen years ago shouldn't be disqualifying, but surely Senators will want to find out if Mr. VanDyke is still a shill for creationism and how that might effect his rulings.
July 25, 2019
July 09, 2019
May 29, 2019
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).