The good, the bad, and the ugly. (This is a comment on the quality of the reviews, not the verdicts they reach!) You would think a very clear, 185-page book would generate more consistently competent reviews, but the topic of religion, alas, seems to be an obstacle.
...is now out, with new essays by Stephen Perry, Barbara Baum Levenbook, Matthew Kramer, Bruno Celano, Michael Giudice, R.A. Duff, C.L. Ten, Hanoch Sheinman, and Luis Duarte D'Almeida. The volumes covers topics in general jurisprudence, as well as the philosophy of criminal law, international law, and contracts, among other topics. Perry's important paper has already commanded attention from jurisprudential scholars.
I'm also pleased to report that John Gardner, the Professor of Jurisprudence at Oxford, will join Leslie Green and me as co-editors of volume 3.
If you've studied philosophy at the undergraduate or graduate level, and are thinking about law school, I would like to urge you to consider the University of Chicago Law School. The Law School trails only Yale in per capita placement in law teaching, and graduates are also hugely successful in the private firm market, and in clerkships. Although we have a relatively small faculty (35 full-time academic faculty), we have two philosophers full-time in the Law School (myself and Martha Nussbaum), and a large number of colleagues with philosophical interests.
There is an annual Law & Philosophy Workshop that meets throughout the year, and which students may take for credit: last year's theme (when I ran it with our Law & Philosophy Fellow Justin Coates) was "Freedom and Responsibility," and speakers included Derk Pereboom, Gary Watson, Pamela Hieryonmi, Hanna Pickard, and others; this year's theme (when the Workshop will be run by Martha Nussbaum and our Law & Philosophy Fellow Sarah Conly) is "Life and Death," and speakers will include Dan Brock, Jeff McMahan, Julian Savulescu, Daniel Wikler, and others. We also have regular offerings in the Law School in jurisprudence, feminist philosophy, political philosophy and other areas. Each year we have both a Law & Philosophy Fellow in residence, and a week-long Visiting Political Philosopher in residence (last year it was T.M. Scanlon, the year before David Estlund). The annual Dewey Lecture in Law & Philosophy has recently brought Philip Pettit and Elizabeth Anderson to the Law School. In addition, there are usually one or more conferences each year in the Law School related to philosophical topics; this Spring, for example, I will organize a conference on "Skepticism about Freedom and Responsibility," with main papers by Conly, Jesse Prinz, Paul Russell, Saul Smilansky, and Gideon Yaffe, with JD and PhD students serving as commentators. There is now a large and lively group of philosophically-minded students here. (More than 10% of the first-year class this year comes to us with a philosophy major or advanced degree--that's the highest since I've been here, and probably one of the highest percentage of philosophy students at any law school in the U.S. That doesn't count one JD/PhD in philosophy student, who is starting in philosophy this year.) Of all the law schools in the U.S., the Chicago experience is also probably most like that of a graduate program in a PhD field, in terms of the intellectual engagement of both faculty and students.
Chicago currently has substantial merit aid to offer to very strong students (the best-known are the Rubenstein Scholarships, but there are other sources of aid, including for students interested in a JD/PhD). Philosophy students, both those with undergraduate majors and those with advanced degrees, have been very successful in getting this aid, and have performed very well at the Law School; as a result philosophy students receive favorable consideration here. Excellent numerical credentials are very important, of course, but even within that pool, applicants with philosophy backgrounds stand out. Students with philosophy backgrounds have recently turned down Yale, Harvard, and other peer law schools to come to Chicago. If you have questions about law study at Chicago, feel free to e-mail me at bleiter-at-uchicago-dot-edu.
I gave a very short talk on this topic a few years ago, but this new draft paper is a much expanded and more systematic discussion, given as a keynote address in August for the annual meeting of the Australasian Society of Legal Philosophy in Sydney. I hope it will interest some readers, and I would especially encourage those outside general jurisprudence but with some interest in the philosophy of law to take a look, since I hope it clears up some common confusions about positivism and about Dworkin's theory of law.
...either because of this or this, not sure which. Money quotes:
"[O]ne of the most troubling and intellectually discreditable books by a serious American scholar in some time."--Family Research Council
"Students and scholars likely will be citing Leiter's clear and powerful arguments for many years."--Choice
(For non-US readers: Choice is widely used by libraries in deciding what to purchase; the Family Research Council is the main policy arm of the far right Christian movement in the U.S.)
UPDATE: My thanks to Brandon Conley for posting a sensible reply at the FRC blog. Still, I am trying to persuade PUP to use the FRB blurb, above, in promotional materials!
ANOTHER (May 5): There was a second comment pointing out the obvious, that the FRC author had not read the book, but that comment has disappeared. So just in case, here is Mr. Conley's comment from the FRC site, which, happily, is still there:
This review willfully misrepresents Leiter's aim as one of criticizing freedom of religious practice without persecution when Leiter's actual target is the idea that religious practices should receive preferential treatment by being exempted from laws designed for the common good. Here's a quote from an honest synopsis of the book displaying the kinds of questions it tackles:
" Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?"
In other words, Leiter is arguing for equal treatment of all claims of conscience, whether secular or religious. Since by far the most persecuted religious affiliation in the U.S. is atheism (in many states it is illegal for an atheist to hold public office), these questions are important to ask. The FCR is employing the all to common tactic of painting an argument against special treatment as an argument for persecution.
First Things is a conservative Catholic intellectual magazine. An unsigned editorial in the April 2013 issue opines that,
A recent book by...Brian Leiter outlines what may well become the theoretical consensus used to reinterpret the First Amendment. "There is no principled reason," he writes in Why Tolerate Religion?, "for legal or constitutional regimes to single out religion for protection." He buys the ideological [sic] attack on religion, describing religious belief as a uniquely bad combination of moral fervor and mental blindness. It serves no public good that justifies special protection. More significant--and this is his main thesis--it is patently unfair to provide it with such. Why should a Catholic or Jew have a special right while Peter Singer, a committed utilitarian, doesn't? Evoking the principle of fairness, Leiter argues that everybody's conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary "liberty of conscience."
Without dwelling on some of the mischaracterizations of my argument (the general thrust of it they have right), it's striking to me that they believe this "may well become the theoretical consensus used to reinterpret the First Amendment." I would welcome that, but I don't expect it to happen in my lifetime. I do think there's more potential in Canada and the European countries, many of which already recognize "liberty of conscience," but have yet, in practice, to extend that much beyond religious claims of conscience. (Of course, I also think there should be no exemptions from laws respsecting the principle of toleration and that promote the general welfare, unless those exemptions do not shift burdens on to others.)
So Princeton University Press tells me they have ordered a new printing of 1,000 more copies of Why Tolerate Religion?, in addition to the 2,000 initial run from October--so while I won't be retiring on the royalties, I must say it's quite a remarkable experience to be on the verge of selling 3,000 hardcover copies of an academic book! Thanks to those of you out there who have bought a copy!
In addition to the event in DC in April, I'll be doing something similar for the Center for Inquiry in Los Angeles in early October; more details on that to come.
THE CONSTITUTION of the United States has its passionate votaries—none more so than Akhil Reed Amar of Yale Law School—as does the Bible. But both sets of worshippers face the embarrassment of having to treat an old, and therefore dated, document as authoritative. Neither set’s members are willing to say that because it is old, and therefore dated, it is not authoritative. Some say it is old but not dated; they are the constitutional and Biblical literalists. But most of the worshippers admit, though not always out loud, that their holy book is dated and must therefore be updated (without altering the text) so as to preserve its authority. They use various techniques for updating....
Amar’s method of updating, which is also the one the Catholic Church applies to the Bible, is supplementation from equally authoritative sources. The Church believes that a Pope receives divine inspirations that enable him to proclaim dogmas that are infallible and thus have equal authority with the Bible. Jesus Christ’s mother does not play a prominent role in the New Testament, but she became a focus of Catholic veneration, and in 1854 the Pope proclaimed the dogma of Mary’s Immaculate Conception (that is, that she had been born without original sin). This and other extra-Biblical Catholic dogmas, such as the Nicene Creed, which proclaimed the consubstantiality of the Son and the Father, form a kind of parallel Bible, equal in authority to the written one, which reached its modern form in the third century C.E.
This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there.
Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.
One is tempted to say that this is preposterous, and leave it at that.
Needless to say, Judge Posner does not leave it at that, and the criticisms seem to me mostly quite sound.
At the Carnegie Council in New York City and in The New Statesman, where British political theorist John Gray says the book is, "A model of clarity and rigour and at points strikingly original, this is a book that anyone who thinks seriously about religion, ethics and politics will benefit from reading." The former event was an address to an educated audience in New York (lawyers, doctors, bankers, etc.), but not a group of academics. Gray's generous review does make one error worth noting towards the end, namely, that he treats the characteristics of religion I identify individually, whereas the account is conjunctive (I quite agree with the points he makes about some of the characteristics considered in isolation).
A draft of a new essay by Alex Langlinais (a philosophy grad student here) and myself, to appear in the Oxford Handbook of Philosophical Methodology, being edited by Cappelen, Gendler, and Hawthorne. Comments welcome.
The penultimate version (pending some publication editing) of my 2011 Meador Lecture at the University of Alabama, forthcoming in Alabam Law Review in 2013. (Not unrelated to some of the issues in our recent [aborted] poll.)
This is the penultimate draft of what will be the lead paper in volume 2 of Oxford Studies in Philosophy of Law, due out later this year. (Volume 1 is here.) Perry's paper is a major contribution to the literature on authority, and so I hope it will whet the appetite of legal philosophers and those interested in the subject for Volume 2. Other contributors to volume 2 will include Bruno Celano, R.A. Duff, Matthew Kramer, Barbara Levenbook, and C.L. Ten, among others.
This essay reviews and evaluates the arguments in Jeremy Waldron's book "The Harm in Hate Speech" (Harvard University Press, 2012). We may summarize the argument for Waldron’s titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken. Second, the harm in question is damage to the “dignity” of vulnerable people based on defamation related to certain characteristics they share with a group, such that they are then deprived of the “assurance…that they can count on being treated justly” (85) in daily life because they are deemed to be “not worthy of equal citizenship” (39). Third, this harm to “the dignitary order of society” (92) is distinct from the individual offense hateful speech may cause, the latter not constituting a ground for regulation on Waldron’s view. Fourth, although regulating to prevent this harm may have some costs, the benefits justify the normal practice in democratic societies of regulating such speech (e.g., 151 ff.). I argue two main points: first, that Waldron's distinction between harm to dignity versus offense is neither stable nor clear; and second, that Waldron's failure to explain why harm to the dignitary order of society is the particular harm of speech that warrants legal redress raises a variety of questions about his view. If the moral urgency animating Waldron's case is the need to protect the vulnerable from harm, why limit that to the harm of losing assurance of "equal standing" or (as he sometimes says) the psychological harm of "distress"?
Consider, for example, what I call "the Ryan case: a powerful congressman, Paul Ryan, proposes to eviscerate and eventually eliminate Medicare, thus threatening to deprive millions of vulnerable, elderly people of essential healthcare. Surely assurance of access to healthcare when in need is at least as important as assurance of dignity in public. Why is this harm, then, not also a candidate for legal redress? I argue that Waldron's view does not have the resources to distinguish the Ryan case, but I do not offer that as a reductio of his position. To the contrary, it seems to me a virtue of Waldron's book is that by making an often vivid case for the harm that the content of speech can inflict on the vulnerable, Waldron forces us to take seriously Herbert Marcuse's old worry: namely, that while the toleration of harmful speech "in conversation, in academic discussion...in the scientific enterprise, in private religion" is justified, perhaps "society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake." Waldron does not explore that implication of his argument, but it is one that warrants renewed consideration if one shares Waldron's core intuition that harm to the vulnerable, even harm inflicted by speech, deserves legal notice.
“Legal Realism” now has sufficient cachet that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms—the American and the Scandinavian—with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share?
I argue that (1) American and Scandinavian Realism have almost nothing in common--indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.
[MOVING TO FRONT FROM OCT. 26 2011: TWO MORE WEEKS TO APPLY]
This ad will run in the next JFP:
THE UNIVERSITY OF CHICAGO LAW SCHOOL. The University of Chicago Law School seeks to appoint a Law and Philosophy Fellow for the academic year 2012-13. A Ph.D. in philosophy by time of appointment is expected, though 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 PhDs awarded in 2005 or later. Law degree (J.D. or foreign equivalent) is helpful, but not required. AOS: Any area of philosophy that intersects with issues of interest to legal scholars. AOC: Any area of philosophy that will enable the Fellow to co-teach the Law and Philosophy Workshop for 2012-13 on the broad theme of "Freedom and Responsibility." (If the AOS is in the area of the Workshop theme, then the AOC is open.) The Workshop will meet about a dozen times over the course of the academic year to discuss work by invited speakers. The Fellow will also be expected to contribute to the intellectual life of the Law School, as well as pursue his or her research. Salary $50K + benefits + superb research environment. To be considered a candidate for this position you must apply on-line through the University website by January 20, 2012. Resume, cover letter, writing sample, reference contact information and research statement should be submitted electronically on the web site at the time of application. Three confidential letters of recommendation should be mailed to Joe Pellettiere at The University of Chicago Law School, 1111 E. 60th St., Chicago, IL 60637 by January 20, 2012. The University of Chicago is an Affirmative Action/Equal Opportunity Employer.
Please e-mail me if you have any questions about the position.
I was fortunate many years ago to get a Newcombe Fellowship from the Woodrow Wilson National Foundation, but the real interest of this profile courtesy of the Foundation is what it quotes me saying about philosophy and law school. I hope some folks at schools with pre-law majors for their philosophy students find it useful!
I am considering enrolling in a joint JD/PhD in philosophy next year, and I was reading through your rankings in philosophy, law, and joint JD/PhD programs. First, let me say thank you so much for the time and energy you've put in to make this information and these rankings available; it has been very helpful for me. My question, however, is if there is any reason why Harvard and Stanford are virtually not mentioned on the "The Study of Philosophy in Law Schools" page on philosophicalgourmet.com. Do their programs for law and philosophy not match up with the other schools mentioned? I ask because they both have very strong respective law and philosophy programs. I know you're extremely busy, so if you don't have time to respond about this, I completely understand. However, if you do get a chance, any comments would be greatly appreciated. Again, thanks so much for the rankings and information you've compiled about law schools and philosophy programs.
Legal academia is more pedigree-sensitive than academic philosophy (and I'm sure many of you think academic philosophy is way too pedigree-sensitive!), so this student's question is quite understandable. Four law schools dominate the market for new law teachers: Yale, Harvard, Chicago, and Stanford. On a per capita basis, Yale is way ahead of the other three, and these four are way ahead of everyone else. Yet two of these three "feeder" schools for legal academia go unmentioned in the current PGR section. (For the 2009 PGR section, see here.)
MOVING TO FRONT FROM NOV. 18 2009, SINCE THE QUESTION IS ARISING AGAIN
A philosophy graduate student writes:
I was hoping you might be able to help me with a follow-up question I had regarding your blog-post on leiterreports regarding the merits of getting a J.D. and a Ph.D. in philosophy. I'm now in my second-to-last year of my Ph.D....working predominantly in political philosophy....My interests have been, over the last year or so, drawing me towards the philosophy of law and I have been considering pursuing my J.D. after I finish my degree, particularly if the academic job market in philosophy is not substantially improved by the time I finish.
My question is this: how much does it matter where I get my J.D. if my aim is to stay in academia and teach (whether predominantly in the law-program or the philosophy department)? I'm sure going to a more prestigious law school helps, but since the more prestigious the school (often) the more expensive it is, if the potential academic job-benefits are not significant it may not be worth the extra expense.
The answer is: it matters a lot if your goal is to get into law teaching (otherwise it matters less). Law school hiring is very pedigree-sensitive, much more so than philosophy hiring, and also without excellence in a specialization compensating for a program that is not overall highly regarded. One need only look at data on where law professors earned their degrees (e.g., here or here) to see that the academic market in law is overwhelmingly dominated by a very small number of schools: Yale, Harvard, Chicago, and Stanford at the very top; Columbia, Michigan, Berkeley, maybe NYU a notch below; Virginia and Penn a notch below those; and then some mix of Northwestern, Duke, Texas, Georgetown, maybe Cornell, maybe Minnesota, maybe UCLA, maybe one or two others.
It is true that scholarly writing is now much more important in law school hiring than it was even twenty years ago--hardly anyone gets hired anymore without having at least one publication post- law school graduation--but before hiring schools even start reading the scholarship, pedigree is used to narrow the pool dramatically. That, I'm afraid, is the reality that anyone thinking about law teaching needs to be aware of.
Law school is expensive, but even the top law schools give 'merit' aid, and those with PhDs or those with potential for academic careers are often viable candidates for that. Should a JD/PhD hopeful pay full price at Harvard over a full ride at Penn? Probably not, and especially given that Harvard Law School is a bit of a wasteland for someone with a serious interest in philosophy, while Penn has a serious commitment to law and philosophy. But should one pay full price at Penn over a full ride at George Washington or Vanderbilt or Emory? There, I think, the answer is probably yes. The latter are all quite good law schools, but in terms of law teaching, the pedigree drop off is probably too great.
ADDENDUM: A more recent study on placement in law teaching, though no significant differences from the earlier ones.
...is now out, clocking in at 298 pages. (UK Amazon lists it as 'in stock,' and presumably the US will shortly.) OUP has done a very nice production job, and Les Green and I were extremely pleased with the contributions for the first volume. There are four papers on issues in general jurisprudence (by David Enoch of the Hebrew University, Mark Greenberg of UCLA, Kevin Toh of San Francisco State, and Riccardo Guastini of the University of Genoa); an essay on constitutional theory by John Gardner at Oxford; and three papers on various philosophical (and sometimes empirical issues) surrounding criminal law and procedure, by Larry Laudan from UNAM, Marcia Baron of Indiana, and Thomas Nadelhoffer of Dickinson.
The full contents of volume 1:
1. Reason-Giving and the Law , David Enoch
2. The Standard Picture and Its Discontents , Mark Greenberg
3. Legal Judgments as Plural Acceptance of Norms , Kevin Toh
4. Rule-Scepticism Restated , Riccardo Guastini
5. Can There be a Written Constitution? , John Gardner
6. The Rules of Trial, Political Morality and the Costs of Error: Or, Is Proof Beyond a Reasonable Doubt Doing More Harm than Good? , Larry Laudan
7. Self-Defense: The Imminence Requirement , Marcia Baron
8. Criminal Law, Philosophy, and Psychology: Working At the Cross-roads , Thomas Nadelhoffer
There may be some mostly cosmetic changes before publication, but otherwise this is the essentially final version, which will appear in Oxford Journal of Legal Studies next year. The core argument remains the same as in the earlier version from last year, though there have been some significant revisions to portions of the paper in light of useful comments from an OJLS referee and from participants in the McMaster "Nature of Law" conference. This version can be quoted and cited.
This will be of interest to students of legal philosophy, involving York Universtiy (and its Law School, Osgoode) and McMaster University, which, together, comprise probably the strongest legal philosophy cohort in Canada and one of the best ones in North America.
This is a slightly revised version of the short paper I gave as part of the "philosophy panel" at the NEH conference on "Civility and American Democracy" at Washington State University last week. (Joe Campbell [Washington State] organized the panel, and the other philosophy speakers were Tom Christiano [Arizona] and Josh Cohen [Stanford].) The history panel was particularly useful, I thought, in underlining the important role of uncivil speech throughout the history of American politics. Professor McGirr from Harvard raised the especially important question why "civility" should have come to the fore as a topic of discussion now. I am inclined to agree, since it does seem to me mostly a distraction issue, meant to silence vigorous challenges to the status quo and preempt discussion of substance. (After all, the real problem with Rush Limbaugh and Glenn Beck is not that they aren't civil, it's that they're ignorant fools and serial dissemblers.)
I'll be onThe Docket, a law-related program on public radio in Orange County, California (broadcast out of UC Irvine), discussing the criminal libel suit against Professor Weiler and the Westboro Baptist case from the U.S. Supreme Court. I'm not sure whether one can listen on-line, but those local can tune in if the subject interests them.
Continental Philosophy Farhang Erfani, a philosopher at American University, provides a useful set of links to news, events, interviews, reviews, videos, etc. related to "Continental philosophy" (broadly construed)