Brian Leiter's Law School Reports

"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.

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.

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

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

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).

"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.

"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. 

"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.

"The Most Important Problem of Contemporary Legal Philosophy"

Papers from an international conference last May are now out in Annals:  Belgrade Law Review, with contributions by Pierluigi Chiassoni (Genoa), Tomasz Gizbert-Studnicki (Jaggellonian U, Krakow), Frederick Schauer (Virginia),Torben Spaak (Stockholm), and myself.  My paper, "Back to Hart," can be downloaded here; the abstract:

The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”

Probably the most important claim is the last one about Ryle's influence on Hart's characterization of the "internal point of view."  As I put it in the paper:

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

A draft of this paper is now available, which will be presented at Georgetown next month.  It picks up on some ideas first mentioned in an earlier blog post and presentation in Turin, which generated a lot of interest:  finally there is a shareable paper. Here is the abstract:

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"Back to Hart"

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

This essay is part of a symposium on "The Most Important Contemporary Problem in Legal Philosophy." The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”