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).
February 21, 2019
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.
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.