...delivers for her constituents, i.e., religious conservatives. This is why she was chosen, it had nothing to do with intelligence or legal competence: it was so she would exercise her power as a super-legislator on behalf of issues dear to religious conservatives, public health or the general welfare be damned. Governor Cuomo should declare the Court mistaken, and ignore the ruling. After all, if Justice Ginsburg had not died, this case would have come out the other way, as everyone knows. Her appointment in Samarra should not change constitutional law, a proposition even conservatives who profess commitment to the rule of law might agree upon.
December 02, 2020
November 30, 2020
November 26, 2020
November 19, 2020
The myth that H.L.A. Hart had a "practice theory" of rules.
The myth that the so-called "normativity" of law presents a problem for legal positivism, let alone a special or interesting one.
The more recent myth that Hart made any kind of "category mistake" in his account of social rules or the rule of recognition.
October 08, 2020
"The Roles of Judges in Democracies: A Realistic View" is now out in Journal of Institutional Studies, and will also be reprinted in P. Chiassoni & B. Spaic (eds.), Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Springer, 2021). From the abstract (taken from the penultimate SSRN version):
What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.
"Critical Remarks on Shapiro's Legality and the 'Grounding Turn' in Recent Jurisprudence," is now up on SSRN; here's the abstract:
The essay discusses some difficulties in Scott Shapiro’s LEGALITY (2011). Many are well-known among specialists, but I set them out systematically here for the benefit of non-specialists. These include the mischaracterization of core jurisprudential questions in terms of “grounding” relations, which unfortunately erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept (cf. pp. 2, 10-13); but also the false claims that: (1) “knowledge of law is normative” such that to say X has “a legal right is to draw a normative conclusion” (cf. p. 15); (2) officials have a legal obligation to follow the rule of recognition (cf. p. 17); and (3) Hart commits a “category mistake” in his discussion of social rules (cf. p. 19). The essay also criticizes Shapiro’s discussion of jurisprudential methodology (pp. 3-8) and his (Dworkinian) attempt to show that the answer to jurisprudential questions matters to how courts should decide cases (pp. 13-14).
The SSRN version will remain on-line and is citable, but much of the material will probably migrate into my From a Realist Point of View (Oxford University Press, forthcoming in 2022 or 2023).
Finally, "The Naturalized Epistemology Approach to Evidence," (co-authored with Gabe Broughton, who is the lead author) is also on SSRN, and will appear in C. Dahlman, A. Stein, & G. Tuzet (eds.), Philosophical Foundations of Evidence Law (Oxford University Press, 2021). Here is the abstract:
September 26, 2020
Harvard's Noah Feldman thinks his friends and former co-clerks are "brilliant" and should be on SCOTUS
That's the short version, I think. (I could count on one hand the number of "brilliant" people I've met in the legal academy, but maybe I don't use it in the hyberbolic way Yale graduates do!) Joking aside, there's no doubt Judge Amy Coney Barrett is a smart and capable lawyer. But Professor Feldman knows as well as I do that those are a dime a dozen, and that the only reason she was chosen from among the many dozens was because she is a religious conservative whom religious conservatives expect will exercise her inevitable discretion in a way congenial to their moral and political objectives. Why not educate the public about what the Supreme Court really does and why the moral and political views of the nominees matter, instead of offering up misleading bromides like she "will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed"? All judges who act in good faith and with adherence to their "principles" will nonetheless have to make moral and political choices on the Supreme Court. Once we get over that low bar of acting in good faith in accordance with "principles," the real question is what will the nominee's moral and political choices be?
September 21, 2020
"Court packing" is typically used to refer to FDR's proposal in the 1930s to expand the size of the Supreme Court, which had been holding New Deal legislation unconstitutional. The idea was that FDR would add justices sympatico to the New Deal, and thus change the political leanings of the Court that would, in turn, influence its constitutional decisions.
FDR's proposed method of court packing was to expand the court, which would change a century-old norm governing the court's composition. But the essence of court packing is not expanding the size of the court, it is changing the norms governing Supreme Court appointments for partisan ends: you can do that by expanding the size of the Court, or you can do it, as Senator McConnell did in 2016, by denying a sitting President even a vote on his nominee for a vacancy on the Court, also a massive violation of an established norm.
Senator McConnell could, perhaps, have been trying to start a new norm, but now it's clear (if anyone had doubts) that was not what he was doing: he wants to pack the court for partisan ends by adjusting the norms for appointments to suit his political preferences, one rule for 2016 when a Democrat is President, another for 2020 when a Republican is President.
September 16, 2020
Today in falsehoods about Nietzsche, courtesy of the "Jurisprudence & Legal Philosophy ejournal" from SSRN...
...which is one of the handful I subscribe to, even though about a quarter of the content is not "jurisprudence & legal philosophy" (authors self-select categories, and the ejournal editors are rather too tolerant). Yesterday's ejournal included a piece by Professor Nicholas Aroney (Queensland), whom I do not know, writing about "The Rise and Fall of Dignity," which at least is relevant to the ejournal's subject. Alas, the abstract reports that, "Defining human dignity solely in terms of human freedom and autonomy has resulted in a hollowing, flattening and atomizing of human dignity, culminating in the postmodern thought of Friedrich Nietzsche in which human dignity is reduced to the ‘will to power’...." Put aside the inapposite epithet "postmodern," the real problem is that Nietzsche has no account of "human dignity," let alone a reductive one, let alone one that reduces it to "will to power" (whatever that would mean, I've no idea). Readers beware!
September 01, 2020
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).