Leiter Reports: A Philosophy Blog

Weapons of Math Instruction

At New York's Kennedy airport today, an individual later discovered to be a public school teacher was arrested trying to board a flight while in possession of a ruler, a protractor, a setsquare, a slide rule, and a calculator.

At a morning press conference, Attorney general John Ashcroft said he
believes the man is a member of the notorious al-gebra movement. He is
being charged by the FBI with carrying weapons of math instruction.

"Al-gebra is a fearsome cult," Ashcroft said. "They desire average solutions
by means and extremes, and sometimes go off on tangents in a search of
absolute value. They use secret code names like "x" and "y" and refer to
themselves as "unknowns", but we have determiner - they belong to a
common denominator of the axis of medieval with coordinates in every
country.

"As the Greek philanderer Isosceles used to say, there are 3 sides to every
triangle," Ashcroft declared.

When asked to comment on the arrest, President Bush said, "If God had wanted
us to have better weapons of math instruction, He would have given us more
fingers and toes. I am gratified that our government has given us a sine
that it is intent on protracting us from these math-dogs who are willing to
disintegrate us with calculus disregard. Murky statisticians love to inflict plane on every sphere of influence," the President said, adding: "Under the circumferences, we must differentiate their root, make our point, and draw the line."

President Bush warned, "These weapons of math instruction have the potential
to decimal everything in their math on a scalene never before seen unless we
become exponents of a Higher Power and begin to factor-in random facts of
vertex."

Attorney General Ashcroft said, "As our Great Leader would say, read my
ellipse. Here is one principle he is uncertainty of: though they continue to
multiply, their days are numbered as the hypotenuse tightens around their necks."

Philosophy Job Market 2003-04

Interesting data here (courtesy of Brian Weatherson) on the distribution of jobs advertised this year by area of philosophy.

IN MEMORIAM

Hugh Kenner (1923-2003)

The New York Times obituary is here.

11/30 UPDATE: And see also this appreciation from the NY Times as well.

Wittgenstein's Symphonic Premiere...

...read about it here. Who knew?

"Bad Writing" by Literary Theorists

This post by philosopher John Holbo on a volume that tries to defend the "bad writing" of Judith Butler et al. is certainly worth reading. I especially enjoyed the dismemberment of the hopeless John McCumber.

But here's something for philosophers to puzzle about: can we say, with confidence, that Judith Butler et al. are really worse writers than John McDowell et al.? Perhaps, but it's tough to explain to "outsiders."

British Performance Poet Rejects OBE

His explanation is here. He observes: "I think OBEs compromise writers and poets, and laureates suddenly go soft...." And not just OBEs...

"The less they know, the less they know it" article of the week is...

...here, wherein a National Review journalist informs us that ABC, CBS, NBC, Time, and Newsweek are bastions of "the Left." What must the intellectual and imaginative horizons be like of someone who actually thinks these media outlets constitute "the Left"?

Two Sides to Every Issue...

...but not all sides are equal.

One side is here (and here), courtesy of a recent graduate of Harvard who majored in philosophy (and who I was picking on here...but now I take it all back).

The other side is here (scroll down to the Update), courtesy of an Assistant Professor of Political Science at the University of Chicago, who has a PhD in the subject.

The Right-Wing Attack on the Academy

It would be fair to say that I'm not a renowned admirer of Stanley Fish's contributions to legal and literary theory, but now that he's become an administrator, he's been rather good on the subject of the growing right-wing campaign against universities--for example, here.

Another salvo in the campaign came last night via Nightline's giving national coverage to the latest bit of sleazy stupidity from the Young Conservatives of Texas, a group that manages to give youth, conservatives and Texas a bad name simultaneously. The YCT has produced a "watchlist" of UT faculty who, it is alleged, "push an ideological viewpoint on their students through oftentimes subtle but sometimes abrasive methods of indoctrination."

Stanford Profs Bring Philosophy to the Radio

UPDATED: see below

"Philosophy Talk" (the creation of John Perry and Kenneth Taylor at Stanford) is set to debut starting January 6th, 2004, 12:00pm pdt on KALW 91.7 FM in San Francisco. The program will appear weekly. From Professor Taylor:

"We are also in negotiations at this very moment with public radio stations in Oregon and Washington State here. So it may well be that we will be on up and down the West Coast from day one.

"We hope to have reached a national audience by the end of our first year on the air.

More on the Draft

Rep. Ron Paul (R-Tx) on "The Crime of Conscription." Although American kids at Oxford find Donald Rumsfeld wholly credible, Congressman Paul apparently does not.

Law School Public Relations and the case of the University of Southern California Law School

Like all law professors, I get mailings every day, especially in the fall, from law schools around the country, touting their visiting speakers, their faculty, their alumni, their special programs, and so on. This practice is plainly a result of the U.S. News law school rankings, 25% of which are based on a "peer reputation" survey. (US News sends a list with the names of all 180+ ABA-approved schools, with no other information, to 4 faculty at each law school, and asks evaluators to score the school's "reputation" based on the quality of faculty, programs, students, alumni, etc.).

There is not much concrete evidence that these mailings help law schools. NYU, for example, has been sending its hyperbolic alumni magazine to law faculty for a number of years, during which times its peer reputation scores have declined in US News (even though the quality of its faculty has improved!). My theory is that the NYU magazine was so absurdly over the top with hyperbole--a Stanford professor aptly dubbed it "law porn"--that it angered more folks than it impressed.

In 1998, my own school began doing its own mailings, though of a different kind. Our theory was that no law professor in his or her right mind has any interest in reading another school's alumni magazine (what do I care about NYU's alumni?), but law professors are almost always interested in what other law faculty are up to. So we created a special publication called "Recent Faculty News," that profiled our new faculty hires, as well as featuring recent faculty achievements (major publications, endowed lectures, etc.), and sent it to law faculty nationwide. (Law schools are larger than philosophy departments, and Texas, with 60+ full-time faculty and an endowment circa $170 million for the law school, is almost continually in the market for new faculty and thus makes new hires every year. While Texas may be a bit richer than most law schools, we're not atypical in the amount of hiring we do.)

Two bits of evidence that the Texas approach has worked reasonably well: first, our "peer reputation" in US News went from 14th in 1999 to 11th last year (during a period of time in which the faculty also got stronger); second, dozens and dozens of law schools around the country began producing similar documents. Instead of tedious alumni magazines, we increasingly get brochures about new faculty and faculty activities. Given my avocation, I find this interesting reading, but it's clear I'm not alone: scholars are interested in what their professional peers have been doing.

Anyway, a few days ago I got a mailing called "Faculty Footnotes" from the University of Southern California law school, that featured--what else?--new faculty and recent faculty activities. Even for this genre, it was a particularly interesting read. It reported four very nice new hires--Catherine Fisk from Loyola Law School (Los Angeles), Elizabeth Garrett from the University of Chicago, Gillian Hadfield from the University of Toronto, and Andrei Marmor from a research post in Israel--as well as the fact that Fisk had turned down an offer from Duke, Marmor from Northwestern, and that long-time USC faculty member, Erwin Chemerinsky, had also turned down a Duke offer. While the vitae of European scholars frequently list offers, it's less common for this to be so public in the US. I appreciated this candor, and there's no doubt that competing offers are a useful, if imperfect, indicator of faculty quality. (That USC's Dean is now Matthew Spitzer, a distinguished law and economics scholar, may have something to do with this new approach. Interesting sidenote: Spitzer himself turned down an offer from the University of Chicago Law School a few years back; he also has a place in the "hall of shame" for the University of Texas School of Law, since it turns out that a generation ago, we failed to make him an offer when he was a rookie job candidate!)

Democracy Hypocrisy...

...from Karl Kraus's favorite-journalist-he-never-met Thomas Friedman is remarked upon here (scroll down to Friday, Nov. 21), with all appropriate scorn and sarcasm.

More Paranoia about fascism

As I've remarked previously, right-thinking folks know that it's just silly to talk about fascism in connection with the current developments in the United States, but for some reason a distinguished historian at the University of Michigan is doing just that. Jeez, it's not like a former high-ranking, and still high-profile, military officer suggested that military rule might supplant constitutional government in the wake of a devastating terrorist attack, or anything. Or is it? (Maybe I better delete this post...)

Blog Stats

So "readership" (hit-o-ship?) seems to have stabilized over the last couple of weeks, with 800 to 1,000 visits per weekday, and 500 per weekend day, with 75% of visits coming from "old-timers" each day. Thanks to those as well who have e-mailed helpful feedback.

Tenure-track faculty in Philosophy at the Top 20 Programs 2003-04

UPDATE (4:19 PM) WITH SOME CORRECTIONS UPDATE 11/26 WITH ONE MORE CORRECTION Here's some information on where faculty currently on tenure-track at the top 20 graduate programs in philosophy for 2003-04 did their graduate work.  (I often get asked for data like this.)  Bear in mind, of course, that these students were choosing graduate schools six to a dozen years ago, during a time when, e.g., Harvard was still in the top five, Berkeley clearly top ten, sometimes top five, Rutgers was just emerging as a top program, Stanford was going through something of a transition period, Raymond Geuss was still training students at Columbia, David Hull was doing the same at Northwestern, Philip Kitcher at UC San Diego, etc. The first list ranks the graduate programs by the number of their graduates currently in tenure-track jobs at top 20 departments; after that comes a list of the tenure-track faculty (plus their primary area of specialization), by where they are currently teaching.

Programs Ranked by Number of Graduates in Tenure-Track Jobs at Top 20 1. Princeton University (13) 2. Harvard University (8) 3. Oxford University (6) 3. Rutgers University, New Brunswick (6) 5.             Massachussetts Institute of Technology (5) 5. University of California, Berkeley (5) 5.             University of Pittsburgh (5) 8.             University of California, Los Angeles (4) 8.             University of Michigan, Ann Arbor (4) 10. University of Chicago (3) 11. Columbia University (2) 11.            Cornell University (2)  

One each: Carnegie-Mellon University Monash University Ohio State University Stanford University University of Arizona University of California, San Diego University of Colorado, Boulder University of London University of Munich University of North Carolina, Chapel Hill University of Pennsylvania University of Wisconsin, Madison Yale University

Objectivity debate in Germany

I was pleasantly surprised to discover that Robert Alexy, probably the leading figure in German legal philosophy, is teaching some of the objectivity debate in recent jurisprudence here.

Some Earlier Law School Rankings

In 1974-75, the Blau-Margulies Reputational Survey asked 104 law school Deans to name "the top 5" law schools. The results (with number saying the school is top 5 in parentheses):

1. Harvard Law School (101)
2. Yale Law School (86)
3. University of Michigan Law School (73)
4. Columbia Law School (60)
5. University of Chicago Law School (58)
6. Stanford Law School (45)
7. University of California, Berkeley Boalt Hall School of Law (19)
8. New York University School of Law (15)
9. University of Pennsylvania Law School (13)

More elaborate (and closest to the 2003 Leiter survey of 152 leading scholars) was the 1977 Cartter Report, published by Change, which surveyed law faculty asking them to evaluate "faculty quality". The 1977 Cartter rankings by faculty quality (with the 2003 Leiter study ranking in parentheses):

1. Harvard Law School (2)
2. Yale Law School (1)
3. Stanford Law School (4)
4. University of Michigan Law School (8)
5. University of Chicago Law School (2)
6. Columbia Law School (5)
7. University of California, Berkeley Boalt Hall School of Law (7)
8. University of Pennsylvania Law School (11)
9. University of Virginia School of Law (10)
10. University of Texas School of Law (8)
11. University of California, Los Angeles School of Law (14)
12. Cornell Law School (14)
13. New York University School of Law (5)
14. Northwestern University School of Law (14)
15. Duke University School of Law (17)

Newcomers to the top 15 since 1977 are Georgetown University (12) and University of Southern California (12).

Thus Spoke Nietzsche

"Where solitude ceases the market place begins; and where the market place begins the noise of the great actors and the buzzing of the poisonous flies begins too.

"In the world even the best things amount to nothing without someone to make a show of them: great men the people call these showmen.

"Little do the people comprehend the great--that is, the creating. But they have a mind for all showmen and actors of great things.

"Around the inventors of new values the world revolves: invisibly it revolves. But around the actors revolve the people and fame: that is 'the way of the world.'

...

"Far from the market place and from fame happens all that is great: far from the market place and from fame the inventors of new values have always dwelt."

--Thus Spoke Zarathustra, Part I, "On the Flies of the Market Place"

Addendum on Sontag

Those seeking to enter "the prison of national vanity, of philistinism, of compulsory provincialism," please go here.

"Literature is freedom"

Lecture by Susan Sontag here.

"To have access to literature, world literature, was to escape the prison of national vanity, of philistinism, of compulsory provincialism, of inane schooling, of imperfect destinies and bad luck. Literature was the passport to enter a larger life; that is, the zone of freedom.

"Literature was freedom. Especially in a time in which the values of reading and inwardness are so strenuously challenged, literature is freedom."

The Homosexuality Debate through a Freudian Lens

UPDATE 11/21: With the recent Mass. Court decision on gay marriage generating much discussion, I thought it might be useful (or at least provocative) to move this earlier posting back to the top:

========================

You would think all those so publically exercised and agitated about homosexuality lately--whether homosexual marriage, or gays in the military, or homosexuals on TV--would be slightly abashed to have revealed their own latent homosexual desires to the world. Or perhaps they're counting on the fact that, these days, no one remembers Freud.

You see, the standard, but I guess no longer familiar, Freudian explanation for hostility towards homosexuals is that such hostility is a defense mechanism against the subject's own homosexual desires. So, e.g., Justice Scalia, all too aware at some level of his powerful homosexual urges, tries to defend against these unacceptable desires by adopting very publically--say, in a dissenting opinion (see esp. 18 ff. of the slip opinion)--the cause of those opposed to the "homosexual agenda" in the "culture wars." If the "homosexual agenda" prevails in the culture war, then Justice Scalia, himself, is at greater risk of succumbing to his latent homosexuality. And by very publically committing himself to opposition to homosexuality, he is better able to strengthen his resolve against his own homosexual tendencies.

"Rank speculation!" you object. Perhaps.

But consider the University of Georgia psychologist, an avowed Freud-skeptic (before), who conducted an experiment to test the Freudian hypothesis. (For the details, see Henry E. Adams, Lester W. Wright, Jr., and Bethany A. Lohr, “Is Homophobia Associated with Homosexual Arousal?” Journal of Abnormal Psychology 105 (1996): 440-445.) The finding: those who expressed the most hostile and negative attitudes towards homosexuals demonstrated the highest level of sexual arousal when exposed to homosexual pornography. In Freudian terms: their homophobia was a reaction formation designed to protect them from their own powerful homosexual desires.

Bush Hating for the MTV Generation is...

...here.

Socialized Medicine Anyone?

Data on health care in civilized countries and the United States, courtesy of Brian Weatherson. I realize, of course, that the civilized nations do not get the benefit of a large and thriving insurance industry.

The Bush Administration Assault on Science

Useful information here on how the most scientifically advanced nation in the world is being led by corrupt and ignorant politicans. A sample:

~David Kay, Bush's top nuclear WMD inspector, has no science degree at all and was until 2002 the vice president of SAIC, one of the contractors most favored by the Bush pentagon.

~Bush's "stem cell expert" was John Mendelsohn, a former Enron executive who was investigated for failing to inform patients participating in a colon cancer drug trial (ImClone) that he had a major financial stake in the outcome.

~ Bush's choice to head the FDA advisory panel that review's women's reproductive health drugs is David Hager, an obstetrician/gynecologist who recommends Scripture readings and prayers for everything form headache to premenstrual syndrome. Hager was chosen over Donald R. Mattison, former Dean of the University of Pittsburgh School of Public Health and Michael F. Greene, director of maternal-fetal medicine at MAss. General.

~~ Michael Wetzman, chief of pediatrics at Rochester General Hospital and author of many publications on lead poisoning in children, was removed from the CDC's panel on childhood lead poisoning and replaced with a doctor with strong ties to the lead industry.

~~ A team of biologists who had been studying three endangered Missouri River fish species for ten years were removed after their report conflicted with the Bush agenda. They were replaced by biologists unfamiliar with both the fish species in question AND the Missouri River. (Nov 2003)

And for more, see this New York Times story.

More Useful Material for Students of Metaethics

Jimmy Lenman at Sheffield, who compiles the extremely useful bibliography of metaethics, also has some course material on line, which includes quite helpful introductory overviews of central metaethical concepts like "error theory," "expressivism" and so on.

Thus Spoke Nietzsche

"There is an instinct for rank that more than anything else, is itself the sign of a high rank; there is a pleasure in nuances of respect that indicates a noble origin and noble habits. The subtlety, quality, and stature of a soul is put dangerously to the test when something of the first rank passes by before the shudders of authority are there to protect it from intrusive clutches and crudeness....Anyone whose task and exercise is the investigation of souls will use this very art, in a variety of forms, to establish the ultimate value of a soul, the unalterable, inborn order of rank it belongs to: this sort of investigator will test out the soul's instinct for respect.

Ashcroft Joke

Attorney General John Ashcroft visits an elementary school. After speaking
for 15 minutes he says, "I will now answer any questions you have."

Bobby stands up and says: "I have four questions, sir:

The Strange Case of Ronald Dworkin, Part I

"For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called 'the Hart/Dworkin debate,' a debate whose starting point is Ronald Dworkin’s 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart’s 1961 book The Concept of Law. Hart’s final word on that debate is now available to us in the posthumously published 1994 “Postscript” to The Concept of Law, while Dworkin has not published anything substantially new about the debate since his book Law’s Empire in 1986.

"The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s masterful work at its center. Rather, it seems to me--and, I venture, many others by now--that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt."

So I begin my paper on "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence" (Download file here), which is appearing this fall in the American Journal of Jurisprudence, as part of a symposium on "Law's Moral Foundations: Has It Any?" (with other papers by Joseph Raz, Timothy Endicott, Matthew Kramer, and John Finnis--and Finnis responds in part to my paper, in particular, my criticism of his views). [Note: an earlier, and rather different version, of this paper appeared as a working paper on the SSRN network quite some time ago. The final version is quite different.]

What I say in the opening paragraphs constitutes the "received wisdom" among legal philosophers these days, though oddly it is little known outside those who work in jurisprudence, where Dworkin still looms very large (the explanation for that I leave to another occasion). Among significant legal philosophers, there are really only two--Stephen Perry at NYU and Nicos Stavropoulos at Oxford--who have offered important defenses of Dworkinian views; the rest of the landscape is populated by legal positivists of one kind of another, mostly Razians, many of those Raz students.

In this and subsequent postings, I want to examine some of the peculiarities of Dworkin's jurisprudential work (I will ignore his influential work on equality for these purposes) that have led to this state of affairs, i.e., that his views should be so relatively moribund among legal philosophers.

One longstanding difficulty has been Dworkin's inability to represent his opponent's views fairly. In the paper, above, I discuss this in connection with his original critiques of Hart, but the problem has actually gotten worse over time, as indicated by the bizarre and slightly unhinged polemic against legal positivism he recently published under the title, “Thirty Years On,” Harvard Law Review 115 (2002): 1655-1687.

Law Student Blogs

Of the various blogs by law students I've seen, this one (by a Michigan student) is easily the most amusing.

The Jewish Taliban...

...apparently want to destroy one of the great achievements of the Enlightenment too, namely, freedom of religion and the separation of public power and religious faith (for their mutual safety). Rabbi Yehuda Levin, head of "Jews for Morality" (and the Jews against morality are....?), angered by the correct removal from office of former Alabama Chief Justice Roy Moore, is quoted here as follows:

"The pseudo-legal gang rape of Justice Roy Moore is an example of creeping Liebermanism.... Just as Senator Joe Lieberman speaks of his religious values while supporting the homosexual agenda and partial-birth abortion,so, too, the judicial dictatorship talks about the Constitution and people's rights while it turns two centuries of America's history and tradition on its head."

The Texas Taliban have nothing on this ignorant zealot.

Phenomenology

Here's an excellent example of what philosophically serious scholarship on Continental philosophy looks like: David Woodruff Smith on phenomenology at SEP.

Nietzsche Myths #1

Myth: The "overman" or "superman" (the Ubermensch [note: umlauts are unavailable on MovableType]) is one of Nietzsche's most important ideas, an organizing theme of his work.

Reality: After Zarathustra, the "overman" drops out of the published corpus, except for two brief references: once in the Genealogy, where he describes Napoleon as a synthesis of "Unmensch [inhuman] und Ubermensch...." (GM I:16) and once in Ecce Homo, in the course of discussing Zarathustra. Rather than being a central idea for Nietzsche, it plays a major role only in Zarathustra, but in none of the major works thereafter (Beyond Good and Evil, the Genealogy, Twilight of the Idols, Ecce Homo, etc.). Since Zarathustra is a parody of the New Testament, in which Zarathustra himself plays the role of Christ figure preaching an anti-Christian message, the rhetoric of "teaching" the anti-Christian message lends itself naturally to the image of the Ubermensch. Once the paradodic form is dropped in subsequent works, there is no need for this rather exagerrated image.

To be sure, Nietzsche is very interested in the fate of those he calls higher human beings--as I argue in Nietzsche on Morality, his central charge against morality is that it thwarts their flourishing--but it is quite clear that Nietzsche's paradigm case of a higher human being is Goethe, who receives more--and more positive--references in the Nietzschean corpus than any other figure (as Thomas Brobjer has shown). Acknowledging this plain fact is hardly to sanitize or democratize Nietzsche, since it is equally plain that he assigns great weight to the flourishing of Goethes and none at all to the misery of the multitude that might be required for the former. But this is a far cry from the cartoon Nietzsche who promotes the mythical superman.

More Contempt for the Rule of Law...This Time Rebuffed by the Brits

According to this story from The Guardian in London,

"Home Secretary David Blunkett has refused to grant diplomatic immunity to armed American special agents and snipers travelling to Britain as part of President Bush's entourage this week. In the case of the accidental shooting of a protester, the Americans in Bush's protection squad will face justice in a British court as would any other visitor, the Home Office has confirmed.

"The issue of immunity is one of a series of extraordinary US demands turned down by Ministers and Downing Street during preparations for the Bush visit."

More Support for the Rule of Law...

...in this editorial from Newsday chastising the Bush Administration's contempt for it.

More on Legal Realism

The Curmudgeonly Clerks writes here about legal realism:

"It's not that legal realism has no merit, it's that its merits are always overstated. Consider, for example, Professor Powe's assessment (as related by his likeminded colleague Brian Leiter): 'Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice." . . . Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.'

"The difficulty with this notion, as I see it, is that we do not need the assistance of law professors to perceive the obvious. Powe may as well stand before his students and sagely advise them that doors are sometimes made of wood. That Scalia's and Stevens's contrasting views of the Constitution are of necessity politically informed and that this information impinges on their jurisprudence is plain as day. Almost no one fails to understand this. However, what many people, including lawyers, do fail to appreciate are the convolutions and subtleties of legal doctrines, constitutional and otherwise. The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former."

There are two central claims here, both of which, read one way, support my original points about legal realism:

First is the claim that it is "obvious" that political ideology plays a role in legal decision-making. (Let's bracket the fact that the central realist thesis was about the role of non-legal norms, not all of which are necessarily political in character.) This is true if we confine our attention to lawyers--and thus the Clerk's affirmation of this point supports my original claim that all lawyers know this to be true--but false if we are talking about non-lawyers. The public culture, after all, sustains the charade--carried out in endless confirmation hearings--that there is a solid distinction between those judges who will "apply the law" and those who will "make the law." If everyone really knew what the Clerk, qua educated lawyer, knows, then this charade wouldn't make any sense.

I am reminded of an extraordinary anecdote courtesy of Judge Posner when he was in Austin two years ago. He recounted the story of his own confirmation hearing, at which Senator Thurmond asked him the obligatory question, "If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?" to which Posner--being more intellectually honest, and less cowardly, than most--replied, "Well, Senator, it's a bit more complicated than that," and then proceeded in to a lengthy explanation of the necessity of judicial law-making, the ambiguity of the kinds of cases that require appellate review, and so on.

When Posner a few weeks later got the transcripts of his confirmation hearing, the exchange appeared as follows:

"Thurmond: If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?

Posner: Yes."

Posner's actual answer was expunged because it obviously conflicted with the official line of the Reagan era--namely, that Reagan was nominating judges who would apply the law, not make the law, in contrast to those "activist" Warren Court liberals --and because the public culture, as I noted originally, is unaware of the realist claim that is obvious to lawyers, the Clerk included.

Second, and more interestingly, there is the claim that, "The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former." This misconceives the relationship, however, between doctrine and political ideology, at least as it figures in the legal realist thesis. For any plausible realist thesis about the indeterminacy of legal reasoning is the thesis that legal reasons underdetermine the legal decision in many appellate cases, i.e., the legal reasons circumscribe the range of legally defensible outcomes, but without requiring any one of them over all the others. Which is to say, in the Clerk's terms, that the doctrine, according to realism, always "constrains" the decision.

But constraint is not enough. The structure of the realist argument is that we face an explanatory gap in looking at a court's decision when,

(a) the legal reasons underdetermine the decision, but

(b) the court reaches (necessarily) one and only one decision from among those that the legal reasons would support.

The gap is filled by appeal to (complications aside) "political ideology."

Which returns us to the original point of my posting on legal realism: given that appellate courts necessarily get a disproportionate number of cases in which the existing doctrine underdetermines the outcome--that, after all, provides a powerful incentive for parties to appeal an adverse decision in a lower court--it is inevitable that appellate judges will have to rely on non-legal norms (moral, political, economic) in resolving the cases. Given that, it is sheer madness to think that those confirming such judges ought to ignore what moral, political, and economic norms judicial candidates subscribe to; and, conversely, it seems quite reasonable to reject those candidates whose normative commitments are too unpalatable to the party in opposition. As Professor Bainbridge called to my attention, while 168 of 174 federal court nominations have been approved by the Senate, only 29 of 46 appellate court nominations have been approved. And that is exactly as it should be, given the far greater role, by every knowledgeable observer's admission (including the Clerk's), that the moral, political and economic philosophies of the judges play in the decisions. Democrats don't vote for conservatives for office; why should Democratic Senators vote for conservatives for judgeships?

Insider Blogosphere Humor

En Banc on one of the Volokh Conspirators:

"Is it just me, or does David Bernstein just alternate between posting about how great his book is and how everyone hates the Jews? I know I'm no paragon of intellectual breadth, but geez."

Thus Spoke Nietzsche

"When stepped on, a worm doubles up. That is clever. In that way he lessens the probability of being stepped on again. In the language of morality: humility."

--Twilight of the Idols, "Maxims and Arrows," sec. 31.

Science Watch publishes list of "Top Ten" Law Faculties 1997-2001

Science Watch, a publication of Thomson ISI (Institute for Scientific Information), has produced new "top ten" lists of faculties based on impact as measured by citations. More precisely, "All the rankings are based on 'relative citation impact'—that is, each university’s average-citations-per-paper score for the five-year period compared, on a percentage basis, against the world impact average in each field. The rankings are based on exclusive publication and citation data on more than 100 U.S. universities in Thomson ISI’s University Science Indicators, 1981-2001." This is basically a somewhat more methodologically sophisticated version of the kind of study reported on here. According to Science Watch, these ten law faculties had the highest rate of scholarly impact during the period 1997-2001:

1. Yale University
2. Harvard University
3. University of Chicago
4. University of Michigan, Ann Arbor
5. University of Texas, Austin
6. University of Virginia
7. Columbia University
8. New York University
9. Cornell University
10. Stanford University

Where Managing Partners Went to Law School

A colleague sent me the latest data (2003) from the Law Firms Yellow Book, which profiles more than 800 law firms around the nation, from all major cities, and from all states except South Dakota. Here is where the firm managing partners went to law school:

1. Harvard University (80)
2. University of Virginia (53)
3. Georgetown University (45)
4. University of Michigan (41)
5. University of Pennsylvania (29)
6. Columbia University (26)
6. Stanford University (26)
8. University of Texas, Austin (23)
8. Yale University (23)
10. New York University (22)
11. George Washington University (21)
11. University of California, Los Angeles (21)
13. Vanderbilt University (18)
14. Washington University, St. Louis (17)
15. Boston College (16)
16. University of North Carolina, Chapel Hill (15)
16. Rutgers University (Camden and Newark) (15)
18. University of California, Berkeley (14)
18. University of Chicago (14)
18. Cornell University (14)
18. Northwestern University (14)
18. Southern Methodist University (14)
23. Boston University (13)
23. Fordham University (13)
23. Indiana University (13)
23. University of Minnesota (13)
27. Ohio State University (12)
27. University of Washington, Seattle (12)
27. University of Wisconsin, Madison (12)
30. Dickinson School of Law/Penn State U (11)
30. Duke University (11)
30. University of Illinois Urbana-Champaign (11)
30. University of Notre Dame (11)
30. Villanova University (11)
35. Case Western Reserve University (10)
35. University of South Carolina (10)
35. College of William & Mary (10)

More on Blogging Scholarly Talks

My admonishing of Larry Solum for misrepresenting the views of his professional colleagues is already having a constructive effect, as evidenced here. Of course, in this latter case, the person whose talk is being recorded is a veteran blogger, so likely to actually read the blog in question, catch any errors, and respond. In the Solum case, by contrast, those whose arguments were mischaracterized never would have learned how they were being portrayed to perhaps thousands of students and faculty if I hadn't flagged it for them. This bears on a point some have made in defence of Solum's practice, namely, "How is this different from a book review? Book reviews sometimes misrepresent someone's views too, after all." Indeed, but there are rather a lot of pertinent differences between book reviews and blogging conferences, for example:

(1) Book reviews are based on a written text, and are usually not written in "real time," both facts which reduce the risk of mistakes and misinterpretations substantially.

(2) Book reviews generally come to the attention of the author, partly because authors look for reviews of their books and authors are usually sent reviews by their publisher. Aggrieved authors can, of course, respond, either with letters to the editor, or subsequent articles. The vast majority of scholars do not read blogs; most of those I talked to about the Rawls blogging were astonished to learn that their remarks had been recorded like this. Perhaps the notoriety of the Rawls conference blogging will lead anyone giving a talk at a conference Larry Solum attends to monitor his blog for misrepresentations in the future.

(3) Book reviews generally reach a specialist audience, which has two advantages in terms of reducing the rate of error: the reviewer has to meet a high standard, because s/he knows that specialists will read the review; and specialists are far more likely to detect errors and misrepresentations and respond, formally and informally. This whole blogosphere discussion resulted from the fact that I actually know something about the views of many of the speakers at the Rawls conference, so in reading Solum's account, various claims lept out at me as not making sense. (I am equally struck by the fact that the enthusiastic defenses of Solum's blogging of the Rawls conference come from those who know very little about the subject-matter.) Except for my commenting on Solum's blogging, it seems likely that hundreds, perhaps thousands, of non-specialists would have been left with false impressions of the ideas and presentations of some of the speakers. (It might fairly be said that circulating misrepresentations among non-specialists really is of less concern to specialists in any case, and perhaps that is right. On the other hand, many law students appear to read Solum's blog--as I remarked previously, it's a great resource, with lots of valuable stuff for students especially--and it does seem an injustice for one's students to be misled as to one's work this way.)

"The less they know, the less they know it" post of the week is...

here. As all right-thinking folks know, governments never lie. And when they do, they can count on clever Americans in Oxford to cover their tracks.

UPDATE: A reader asks: "Do you really think they made up the 20-year thing for the draft boards?" This took be my surprise. I wrote back: "The 20-year terms of draft board members isn't the issue, though I suppose it's worth noting that if board members started those term in 1981, it's a bit odd that it's only in late 2003 that the Defense Department is rushing to fill their slots. (Why not in 2001, or 2000 in anticipation?) But put that aside. The real question is who in their right mind assigns any credence to statements by Secretary of War Rumsfeld [as the department used to be called in more honest days] saying they won't reinstate a draft? Given the military staffing problems we're now confronting--which was the main point, I thought, of the Salon article--it seems plausible that the chicken hawks in the current administration are thinking about a draft as one alternative--after election day, of course. What was utterly childish about the posting in question was the quotation of governmental officials denying any such intent as though that were probative, conjoined with the failure to consider the logistical considerations that make a need for more men in uniform apparent. Even the absurd OxBlog folks are commenting on the need for more troops, confident, no doubt, that their blood won't be shed."

Wiping the floor with Thomas Friedman

Karl Kraus's favorite-journalist-he-never-met gets a suitable (and amusing) thrashing here. A taste: "The New York Times’ Tom Friedman has a thing about wheels. They recur in his columns with chilling frequency. The tendency is so overt that he often reads like a classic case study in sexual fetishism–particularly given the fact that he sometimes mentions wheels in conjunction with his wife."

Choice Quote on Intelligent Design Creationism

"It just absolutely boggles the mind," said Dr. James Langer, a physicist at the University of California at Santa Barbara who is vice president of the National Academy of Sciences. "I wouldn't want my doctor thinking that intelligent design was an equally plausible hypothesis to evolution any more than I would want my airplane pilot believing in the flat Earth."

--from The New York Times.

What is "legal realism"?

UPDATE: I'm moving this post (from 9/17/03) to the top, given the latest brouhaha about the judicial confirmation process. The Democrats have approved 168 of Bush's 172 nominees; that's to their lasting shame. An honest, i.e. legal realist, appreciation of what appellate courts actually do, suggests that they ought to be using the filibuster a lot more.

===========

So I am asked by a reader of the preceding post. I don't find blogs work too well as scholarly fora, so I refer interested readers to my essay in the forthcoming Blackwell Guide to Philosophy of Law on "American Legal Realism" for a scholarly answer. (There is a "Scandinavian" branch of "legal realism" which is a very remote cousin of the American branch--indeed, the label "legal realism" is probably more misleading, than illuminating, when applied to both--for reasons I'll explain when I finally finish the essay on both kinds for the Stanford Encyclopedia of Philosophy.)

A non-scholarly, and more superficial, gloss on "legal realism" will have to suffice for purposes here. Those who are realists about law, and more particularly, courts, think that the kinds of "legal reasons"--appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case--that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don't really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge's commitment to non-legal norms (moral, political, economic).

A Nice Triumph for the Rule of Law

The lawless Roy Moore of the Alabama Supreme Court (and the Alabama Taliban) has been ousted for his gross misconduct in the Ten Commandments case. I'm pleased to welcome Alabama back to the family of jurisdictions that recognize the rule of law.

Thus Spoke Nietzsche

Americans' "breathless haste in working--the true vice of the new world--is already starting to spread to old Europe, making it savage and covering it with a most odd mindlessness. Already one is ashamed of keeping still; long reflection almost gives people a bad conscience. One thinks with a watch in hand, as one eats lunch with an eye on the financial pages--one lives like someone who might always 'miss out on something.' 'Rather do anything than nothing'--even this principle is a cord to strangle all culture and all higher taste....

"For life in a hunt for profit constantly forces people to expend their spirit to the point of exhaustion in continual pretence or out-smarting or forestalling others: the true virtue today is doing something in less time than someone else....

"More and more, work gets all good conscience on its side; the desire for joy already calls itself a 'need to recuperate' and is starting to be ashamed of itself. 'One owes it to one's health'--that is what one says when caught on an excursion in the countryside."

--The Gay Science, sec. 329. (This was written more than 120 years ago.)

UPDATE: A student from Boston University has pointed out to me another, complementary passage from the same book:

How often I see that blindly raging industriousness does
create wealth and reap honors while at the same time depriving
the organs of their subtlety, which alone would make possible
the enjoyment of wealth and honors; also that this chief
antidote to boredom and the passions at the same time blunts
the senses and leads the spirit to resist new attractions.
(The most industriousness of all ages--ours--does not know how
to make anything of all its industriousness and money, except
always still more money and still more industriousness; for it
requires more genius to spend than to acquire. --Well, we
shall have our "grandchildren!")
The Gay Science, sec. 21

Texas Taliban Mania

I started using the term "Texas Taliban" to refer to that alarming brand of Texas politicos who want to make the law of their God the law of the land. (The Texas Taliban suffered a big defeat on biology textbooks last week, as noted in an earlier posting.) But it turns out that the label predates me (sigh). For example, it is used here in discussing Texas Governor Perry's flagrant violation of constitutional requirements regarding school prayer; it appears to have first been used in a column by Ellen Goodman about Lawrence v. Texas, the Supreme Court case striking down the Texas sodomy law; in a usage that postdates mine, it is used here to describe the textbook censors whom readers of this blog know well; the Texas Observer used the phrase to describe conservative evangelicals in San Antonio here; it gets a completely different usage at this anti-Bush site and in a similar way in this column.

There's nothing like a good alliteration...

A Useful Perspective for Academic Job Seekers

Current academic job seekers, in philosophy or law, may find this essay of interest, concerning the trade-offs between quality of job and quality of location.

Nathan Newman

Do you roll your eyes in disbelief most of the time while reading the Volokh Conspiracy? Then Nathan Newman is for you: no bullshit, and he's got some notion how the world actually works.