Leiter Reports: A Philosophy Blog

Some jurisprudential articles

"The Roles of Judges in Democracies:  A Realistic View" is now out in Journal of Institutional Studies, and  will also be reprinted in P. Chiassoni & B. Spaic (eds.), Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Springer, 2021).  From the abstract (taken from the penultimate SSRN version):

What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.

"Critical Remarks on Shapiro's Legality and the 'Grounding Turn' in Recent Jurisprudence," is now up on SSRN; here's the abstract:

The essay discusses some difficulties in Scott Shapiro’s LEGALITY (2011).  Many are well-known among specialists, but I set them out systematically here for the benefit of non-specialists.  These include the mischaracterization of core jurisprudential questions in terms of “grounding” relations, which unfortunately erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept (cf. pp. 2, 10-13); but also the false claims that:  (1) “knowledge of law is normative” such that to say X has “a legal right is to draw a normative conclusion” (cf. p. 15); (2) officials have a legal obligation to follow the rule of recognition (cf. p. 17); and (3) Hart commits a “category mistake” in his discussion of social rules (cf. p. 19).  The essay also criticizes Shapiro’s discussion of jurisprudential methodology (pp. 3-8) and his (Dworkinian) attempt to show that the answer to jurisprudential questions matters to how courts should decide cases (pp. 13-14). 

The SSRN version will remain on-line and is citable, but much of the material will probably migrate into my From a Realist Point of View (Oxford University Press, forthcoming in 2022 or 2023).

Finally, "The Naturalized Epistemology Approach to Evidence," (co-authored with Gabe Broughton, who is the lead author) is also on SSRN, and will appear in C. Dahlman, A. Stein, & G. Tuzet (eds.), Philosophical Foundations of Evidence Law (Oxford University Press, 2021).  Here is the abstract:

Former Supreme Court clerks all love each other...

...as this recent endorsement of Judge Barrett reveals.

What is court packing?

Since my e-mail "interview" with NPR is showing up in lots of stories, let me say a bit more.

"Court packing" is typically used to refer to FDR's proposal in the 1930s to expand the size of the Supreme Court, which had been holding New Deal legislation unconstitutional.  The idea was that FDR would add justices sympatico to the New Deal, and thus change the political leanings of the Court that would, in turn, influence its constitutional decisions.

FDR's proposed method of court packing was to expand the court, which would change a century-old norm governing the court's composition.  But the essence of court packing is not expanding the size of the court, it is changing the norms governing Supreme Court appointments for partisan ends:  you can do that by expanding the size of the Court, or you can do it, as Senator McConnell did in 2016, by denying a sitting President even a vote on his nominee for a vacancy on the Court, also a massive violation of an established norm.

Senator McConnell could, perhaps, have been trying to start a new norm, but now it's clear (if anyone had doubts) that was not what he was doing:  he wants to pack the court for partisan ends by adjusting the norms for appointments to suit his political preferences, one rule for 206 when a Democrat is President, another for 2020 when a Republican is President.

On the death of Justice Ginsburg of the Supreme Court of the United States (SCOTUS)

Her death is deeply unfortunate, not just for her family, but for the polity she served, and on many levels.

To start, it makes clear how perverse "life tenure" on SCOTUS has become when people live so long.  You can protect judges from political influence by giving them term-limited tenures that will extend beyond the terms of political actors:  in the U.S., that would be 15 or 20 years.  Many will complain, not unreasonably, that she should have stepped down during Obama's term.  In retrospect, she should have, but recall the Merrick Garland fiasco.

The real problem, of course, is that SCOTUS is a super-legislature--here is a popular explanation and a more jurisprudential one of this point--and so the prospect that a Democratic member of the super-legislture will be replaced by a Republican one is a serious matter.  The Nazi Senator from Kentucky, Mitch McConnell, will surely try to ram one through, notwithstanding his obviously spurious claim last time around that the election should decide Justice Scalia's replacement (his absurd rationale for why Judge Garland of the DC Circuit, whom Obama nominated, should not be even considered).  If the Republicans succeed in appointing a new justice to the super-legislature, then in the next Democratic Administration (assuming there is one), SCOTUS membership will either be vastly expanded to counteract this reactionary court-packing or its jurisdiction will be stripped so that it becomes a less relevant super-legislature.

"Legal Positivism as a Realist Theory of Law"

The penultimate version is now online; main change was in the final section, discussing the "Service Conception."

"Contemporary Legal Realism"

A special journal issue of solicited contributions at Iuris Dictio, a law journal from Ecuador.  Some, but not all, of the essays are in English.  Besides my own essay, there are contributions by the leading figures in contemporary Italian and French legal realism (Riccardo Guastini and Michel Troper, respectively).

Richard Marshall interviews Liam Murphy (NYU)...

...at 3:16 AM.  This is well-said (including its description of the positivist view):

All sensible views treat matters of brute social/political fact as partly determining law’s content but some, the nonpositivists, have it that moral judgment is inevitably required in interpreting legal materials to figure out what the law says. Others, the positivists, have it that though moral judgment may well be needed if a judge is to make a decision, it is not required in order to determine what the law (already, before the decision) says; once your interpretation draws on independent moral judgment you are making law rather than finding out its content. I should say that the most important nonpositivist, my late colleague Ronald Dworkin, in his final writings on the topic abandoned what I just attributed to “all sensible views.” He concluded that legal interpretation was moral judgment all the way up and down—that is, matters of social/political fact do not determine any part of law’s content unless there is moral reason for that. I think this kind of view denies the reality of law as a normative order distinct from morality and is mistaken.

Dworkin is certainly the best-known nonpositivist, the one who did the most to deform honest discussion of issues in legal philosophy over the last fifty years; I doubt he's the most important, but that's another story.

Papers posted on-line in 2019

For those interested, here are links to the new and revised papers I posted on-line in 2019:

"The History of Philosophy Reveals that 'Great' Philosophy is Disguised Moral Advocacy:  A Nietzschean Case Against the Socratic Canon in Philosophy"

"Culture and Value in Nietzsche"

"Nietzsche's Naturalism:  Neither Liberal Nor Illiberal"

"Bernard Williams' Debt to Nietzsche: Real or Illusory?"

"Foucault as a Kind of Realist:  Genealogical Critique and the Debunking of the Human Sciences"

"Marx and Marxism" (with Lawrence Dallman)

"Legal Positivism as a Realist Theory of Law"

What is a realist theory of law?

This programmatic essay, which was written for translation into Portuguese and Spanish for legal philosophy journals in South America, may be of interest to some readers.

Law & Philosophy Fellowship at University of Chicago for 2020-21

The ad is now up; I paste the description of the position below:

The University of Chicago Law School seeks a Law and Philosophy Fellow, appointed with the rank of Lecturer, for the academic year 2020-21. This is a twelve-month appointment and is expected to begin July 1, 2020. 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 new or recent PhDs or tenure-stream faculty interested in spending a year at the Law School. The Fellow will co-teach the Law & Philosophy Workshop with Brian Leiter on the theme of “New Directions in Political Philosophy,” which will focus on political realism, the debate about ideal vs. non-ideal theory, and, more generally, reactions to the Rawlsian hegemony in Anglophone philosophical work of the past fifty years.   AOS:  Political philosophy, with knowledge of Workshop themes essential; AOC:  open.  Visiting speakers will be prominent scholars working on these issues.  The Workshop with visiting speakers will meet roughly 8-10 times over the course of the year, but there will be initial sessions devoted to discussing Rawls’s work with enrolled students and occasional preparatory sessions for students prior to some visiting speakers.  The Fellow will also be asked to supervise student papers, and to contribute to the intellectual life of the Law School, as well as pursue his or her research. Salary $60K + benefits + superb research environment.  To be considered a candidate for this position you must apply on-line through the University website at apply.interfolio.com/71893 by January 24, 2020. 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 Mr. Joe Pellettiere at The University of Chicago Law School, 1111 E. 60th St., Chicago, IL 60637 with a postmark not later than January 24, 2020.

Joseph Raz retires from Columbia

Raz, certainly the greatest living legal philosopher in the Anglophone world, has apparently retired from Columbia Law School, where he taught for a semester each year since retiring from Oxford more than a dozen years ago.  

Big trends in jurisprudence? There ain't any!

From an interview with the great legal philosopher Leslie Green (Oxford & Queen's U/Canada):

What are some big trends in Jurisprudence these days and how do you feel about them?

There are no big substantive trends: pluralism reigns.....Other trends are worrying: too many articles are too long and too wrong; young scholars are pressured to come up with a bold ‘line’ then stick to it, no matter what. And many people care more about saying something new than about saying something true.   

Amen to all that, especially the last sentence.

 

"Legal Positivism as a Realist Theory of Law"

This is essentially the final version (minus some citations and formatting) that will appear in The Cambridge Companion to Legal Positivism, which will probably be out in 2020 (and is being edited by Patricia Mindus [Uppsala] and Torben Spaak [Stockholm]).

It's time to end life tenure on the U.S. Supreme Court

It sure is.  Related.

Doerfler from Penn to Chicago

I'm very pleased to report that Ryan Doerfler, a lawyer/philosopher currently at the University of Pennsylvania, has accepted a senior offer from the Law School here, where he will start this summer.  My law readers will know Doerfler for his already influential work on statutory interpretation, work that draws on his expertise in philosophy of language and epistemology.   This is an exciting appointment for law & philosophy here at Chicago; he is only the second philosophy PhD on our relatively small law faculty (fewer than 40 tenure-stream lines), although the third philosopher!  (My colleague Martha Nussbaum, the eminent political philosopher, has her PhD in classics, not philosophy, as some readers may know.)  We are approaching 10% philosophers!

Seminars on my realist jurisprudence at the EHESS in Paris in June

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).

Oxford's Les Green interviewed...

..at 3:16 AM (Richard Marshall's new site for interviews with philosophers).

UPDATE:  Green, who is the Professor of Philosophy of Law at Oxford, and who has also written extensively on philosophical issues related to sexuality, briefly discusses in this interview some of his views on the questions raised by the gender self-ID law in the UK:

It is wrong for the medical professions, especially pseudo-scientific fields in psychiatry, to be the gate-keepers of gender change. To feel utterly heartsick living as a man, and to want to live as a woman instead, is neither an illness nor a symptom of one. Many men can probably understand mild versions of that feeling. In a tiny minority of cases, people who loathe their gender stand no chance of leading happy lives without the help of medication or surgery, and at that point the medics do need to be involved (and closely regulated). But we should not also hand over to them the authority to decide who is entitled to what designation on their passport, or to use which toilets. These are questions of political morality.

The controversial issue is what should replace medical designation, for legal purposes. In ordinary personal life and interaction, we should treat people, and refer to them, according to whatever gender identity they prefer—or none. It is an insult to do anything else. But it does not follow that that is also the right answer in all legal (or scientific, or medical) contexts. When the question ‘who has the right to do X?’ turns on gender, and has legal effect—authoritative rulings, coercive enforcement, stigma etc.—we need to give greater weight to the interests of other people. It is no longer just a question of decency and good manners. When a former-man who is now a trans-woman demands, as of legal right, access to traditionally gender-segregated facilities (change rooms, toilets, prisons), or programmes (affirmative action), or employment (in rape crisis centres) the stakes are high. Historically, much gender-segregation was wrong, but in these cases its purpose and effect is to advance the interests of women. For trans-women, admission to these spaces and programmes is an important sign that they are finally, fully women. But for other women, it would be to take away spaces, resources, and programmes that they need. The conflict of interest is real.

In this context, ‘self-identification’ means that law should give decisive weight to the sincere affirmation of someone who was not formerly a woman that now she is. It matters that the affirmation be sincere, and to some extent stable, not only for practical purposes but also to reduce possible (if largely hypothetical) strategic and aggressive uses of self-identification. One option is something like the Irish model, requiring a statutory declaration and providing for penalties for abuse. But this will not resolve all the issues. I share Kathleen Stock’s view that there are deep conflicts of interest here between women and trans-women. We may be able to avoid some of them, but I’ve a feeling that there will also have to be legislative compromises. We won’t get there, however, until we can have an adult discussion of these things.

These, by the way, are all normative questions about law and policy. The conceptual question whether trans-women count as women is another matter. (So too, the ‘metaphysical’ question, if there is such a thing, whether trans-women are women.) On this issue, I hew to Simone de Beauvoir’s view that our concept ‘woman’ includes an important path-dependent element, and I think that most trans-women lack the life histories that constitute woman-hood. But there is room for argument about that. ‘Woman’ is a cluster concept, and anyway it is not as if ‘man’ or ‘woman’ have sharp boundaries. There is also room for argument about whether, if Beauvoir is right, we ought to revise or abandon the concept ‘woman’. This is really a question of whether we should ditch our gender concepts altogether. (There is no case to be made for ditching the concepts ‘female’and ‘male’; despite indeterminacies, we need the sex categories for too many scientific and medical purposes.) The question is too large to address here, save to say this: We cannot, change our concepts by philosophical argument, let alone by stipulation. We would have to change our world.

These sensible remarks, predictably, produced an outburst of "condescension from below" from the usual suspects:

Nate Sheff (Connecticut):   "The grand synthesis: what goes on the gender part of your passport is whatever Les Green says."

Erin Islo (Princeton), purporting to paraphrase Green:  "doctors shouldn’t make these decisions, patients themselves shouldn’t have the agency to make these decisions, a bunch of barely sentient corporate-sponsored tubs of vanilla pudding should make these decisions. it’s about political morality after all!”

Christa Peterson (USC):   "This is repulsive and DEEPLY UNSERIOUS haha philosophy is horrible!"

"Deeply unserious" indeed.

"Legal Positivism as a Realist Theory of Law"

Rough draft here, ultimately forthcoming in The Cambridge Companion to Legal Positivism.

Another day, another group of students with open contempt for academic freedom

Oxford students, apparently having discovered that legal philosopher and reactionary Catholic John Finnis has written foolish and sometimes quite ugly things about gay people for years, are now demanding that he be removed from teaching.  Finnis would, in his teaching, have to abide by anti-discrimination rules and law, but there is no allegation that he has violated any of these.  Instead, the students wish to sanction him for his published writings.   Perhaps the Oxford BCL course of study should require a mandatory course on academic freedom, so that these students would not disgrace themselves and their university.

(Thanks to Stuart Goosey for the pointer.)

Law & Philosophy Fellowship at University of Chicago, 2019-20

The ad for next year's position is now available.  Here is the description (note the Workshop theme!):

The University of Chicago Law School seeks a Law and Philosophy Fellow, appointed with the rank of Lecturer, for the academic year 2019-20. This is a twelve month appointment and is expected to begin July 1, 2019. 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 new or recent PhDs or tenure-stream faculty interested in spending a year at the Law School. The Fellow will co-teach the Law & Philosophy Workshop with Martha Nussbaum on the theme of “immigration, Citizenship, and Belonging.”  AOS:  Political philosophy, with knowledge of issues of global justice and migration essential; AOC:  open.  Visiting speakers will be prominent philosophers and law academics working on these issues.  The Workshop will meet about 12 times over the course of the year, with some initial sessions devoted to discussing key texts with enrolled students, and the rest to discussing the papers of the invited speakers with them and with students and faculty.  The Fellow will also be asked to supervise student papers, and to contribute to the intellectual life of the Law School, as well as pursue his or her research. Salary $55K + benefits + superb research environment.  To be considered a candidate for this position you must apply on-line through the University website at https://tinyurl.com/yasugkf4 by January 21, 2019. 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 Mr. Joe Pellettiere at The University of Chicago Law School, 1111 E. 60th St., Chicago, IL 60637 with a postmark not later than January 21, 2019.

Information about how to apply is available at PhilJobs.

Green on Gardner on the "escapability" of law and the (alleged) "inescapability" of morality

Leslie Green and John Gardner are two of the best (maybe the two best) legal philosophers in the world active today; here Green critically considers some of Gardner's recent work.  Definitely worth reading for anyone interested in philosophy of law, broadly construed.

Philosophy students thinking about law school?

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 (38 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 of various kinds (including William Baude, Aziz Huq, Richard McAdams, David Strauss, and David Weisbach, among others).  We also have a steady stream of visiting faculty with philosophy training, including in recent years John Tasioulas (King's College, London), Robert Mark Simpson (University  College London), Ryan Doerfler (Penn), Leslie Green (Oxford), and Alon Harel (Hebrew U), among many others.  We also host an annual Law & Philosophy Fellow; past fellows include Amanda Greene (now at University College London), Adam Hosein (now at Northeastern University), Nicolas Delon (now at New College, Florida), Sarah Conly (Bowdoin College), and Ben Laurence (now teaching in philosophy and human rights here at Chicago), among others.  

Each year, we offer a Law & Philosophy Workshop, on a designated theme, which 2L and 3L students (as well as PhD students) may take for credit.  This year, I'm running the Workshop (with Nethanel Lipshitz, our Law & Philosophy Fellow) on the theme, "Enlightenment Liberalism and Its Critics, Left and Right"; outside speakers this year include Jeremy Waldron, David Brink, and Allen Wood, among others.  Prior themes have included "Life and Death" (Martha Nussbaum), "Freedom and Responsibility" (me), "Legal and Philosophical Issues about Race" (Nussbaum), and "Free Speech and Its Critics" (me).  Speakers have included Gary Watson, Derk Pereboom, Hanna Pickard, Seana Shiffrin, Jeff McMahan, Dan Brock, Derrick Darby, Charles Mills, Joshua Cohen, Pamela Hieryonimi, and Mary Kate McGowan, among many others.

The Law School also sponsors the annual Dewey Lecture in Law & Philosophy, which in the last few years has brought Philip Pettit, Elizabeth Anderson, and Axel Honneth to the Law School; upcoming Dewey Lecturers are Steven Lukes and Seyla Benhabib.

We also have regular offerings in the Law School in jurisprudence, feminist philosophy, political philosophy and other areas. Martha Nussbaum and I each teach a Spring course open to 1L students (as well as upper-level students):  I always offer the basic "Jurisprudence" class, while Martha usually teaches either "Feminist Philosophy" or "Emotions, Reason, and the Law."  Martha and I also offer seminars each year that are open to JD students, ranging over topics from "Hellenstic Ethics" to "Bernard Williams," to "Freedom and Responsibility, Contemporary and Historical," to "Global Inequality:  Philosophical and Economic Perspectives."  In a typical year, I usually supervise a couple of independent study projects related to philosophical topics as well. 

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.  We've also been very successful at recruiting students with philosophy backgrounds, so you will have many like-minded peers.  This year, more than 15% of the 1L class either majored in philosophy or (in three cases) has a graduate degree in the field.  I doubt the percentage of philosophy students in law school is higher anywhere in the country.

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.

'Reply to Five Critics of WHY TOLERATE RELIGION?'

Springer has now made this essay from Law & Philosophy freely available; for those who have followed the debates surrounding the arguments in the book, the most significant revision of my view comes in the section discussing the critique by Boucher & Laborde, which I post below the fold (form pp. 548-549) (footnotes omitted, and italics were lost):

The Jurisprudential Census

I first posted this more than a decade go, but it's at a new location and is still quite amusing.

(Thanks to Maris Kopcke Tinture for the pointer.)

On the nomination of Judge Kavanaugh to the super-legislature

I'll just link to the piece I wrote when Judge Gorsuch was nominated.  I guarantee there won't be an honest discussion this time either.  I don't think Kavanaugh will vote to overturn Roe, for what it's worth.  I do think his ascendancy to the Supreme Court will guarantee the irrelevancy of that institution for the next generation.

Legal philosopher Joseph Raz wins (lucrative!) Tang Prize in "Rule of Law" from Taiwan

A news story here.  What a nice recognition for the most important figure in Anglophone legal philosophy after H.L.A. Hart!

(Thanks to Brian Bix for the pointer.)

Duke Kunshan's Benjamin Schupmann interviewed...

...at 3AM.  This is interesting about Carl Schmitt and Weimar Germany, though it gives a misleading impression of Hans Kelsen's views.

Deciding between graduate school in philosophy and law school

A recent philosophy graduate gave me permission to share his questions, which might be of interest to others:

I am currently deciding between graduate school in philosophy (I graduated in honors philosophy from [school name omitted] in 2015) and law school. In the long run I am considering whether to pursue philosophical or legal academia. I have benefitted greatly from your advice to prospective philosophy graduate students and prospective law school students with philosophical interests on Leiter Reports. Since I have a couple of questions that as far as I can see have not been directly discussed in a Leiter Report blog post I thought I would email them to you in case you have the time to answer them.

1. My primary area of philosophical interest is political philosophy. In the spirit of your post on the difference between the study of political philosophy in political science and philosophy departments, I am wondering about the difference between working in political philosophy in a law school or in a philosophy department. What would you say are the most significant differences that someone considering both options should take into account?

2. a. If one were to plan on obtaining a philosophy PhD and a JD separately in order to pursue legal academia, is there a significant difference academically in doing one of them first? For instance, would there be a significant impact on one's study of the subjects themselves? on job market chances?

b. If there is, is one course of study preferable? In other words, is it more beneficial to come to the study of law with significant training in relevant philosophical areas (political, moral, epistemology), or to come to the study of philosophy with philosophical questions arising from one’s study of law?

Here are my answers:

1.  At many good law schools (see this section of the PGR), there are serious opportunities to study political philosophy, but even at the best law schools, given that most of your studies will not be philosophy-related, you can't get adequate training to do professional work.  At best, you can acquire competence with themes, authors, and arguments, but you won't emerge as a political philosopher with a JD only.

2a.  I've known students who have done it in both directions, and had good success at it.  PhD programs seem, in recent years, to be keen to admit those with a good JD record, but those who come to the JD with a PhD in philosophy already have a set of intellectual and disciplinary skills that can help them thrive and do quite well in law school.

2b.  I don't think there's a one approach fits all answer to this question.  But I'm opening comments for thoughts from other readers.

 

 

Democratic backsliding: the case of Poland

Some readers may find this of interest.

Attention PhD students doing work where law study might be helpful

The University of Chicago Law School is once again offering a fully funded (including living stipend) one year M.L.S. degree, allowing a student to spend a year here taking courses, seminars and workshop in the law school that will complement and facilitate your dissertation work.   The application information is here and more information about the program is here.  At the time of application you should be done with or finishing your coursework and embarking on a dissertation proposal for which deeper knowledge of law would be helpful.  Feel free to shoot me an e-mail if you have questions not answered by the preceding documents.   Note that if you decide you want to earn a J.D., you will not be able to count any of your MLS coursework towards the JD (this is an American Bar Association rule, not a rule of our law school).

2017 in review: articles posted on SSRN

Over the course of the year, I posted the following articles on SSRN:

"Legal Positivism about the Artifact Law:  A Retrospective Assessment"

"The Roles of Judges in Democracies:  A Realistic View"

"Justifying Academic Freedom:  Mill and Marcuse Revisited"

"Nietzsche and Aestheticism" (originally published in 1992, my first peer-refereed publication)

"Knowledge and Affect:  Perspectivism Revisited"

"Introduction:  Nietzsche's Naturalistic Moral Psychology"

"Why Academic Freedom?"

Why Academic Freedom?

Once again into the fray.  A brief excerpt from the paper:

The main threats to academic freedom in the natural sciences in the capitalist democracies come from powerful business interests that disfavor, for profit-seeking reasons, certain discoveries:   for example, concerning the human contribution to climate change, to take the most important example in the present, but also findings about the inefficacy of particular pharmaceuticals and medical treatments.   Businesses have a strong interest in the correct natural scientific understanding of the causal order of nature, to be sure, since the extraction of profit from nature requires it.  At the same time, businesses also have strong interests in concealing certain scientific results that might impede popular acceptance of their business practices and consumption of their products.  Academic freedom is a crucial bulwark in favor of discovering truths about the natural world even in the relatively free capitalist societies.

In the human sciences, the issues are usually different:  it is, shall we say, rare for international corporations to get exercised about the latest developments in the history of early modern Europe or philosophy of the social sciences.  The threats to academic freedom in the human sciences come less from the business sector, and more often from political and religious interest groups whose normative commitments are threatened by the findings of the human sciences.   In the United States, for example, external pressure is frequently brought upon universities who try to employ critics of Israeli policy towards the Palestinians.[1]   But the pressure to violate academic freedom comes from within the universities too.   Indeed, some humanists have concocted a whole new metaphysics of “silencing” and “marginalizing” and “violence” to describe the expression of ideas that are offensive and insulting to certain minority groups.  For these academic insiders, Marcusian “indiscriminate” toleration in academic discourse is not acceptable, since the expression of ideas that might be hurtful to individuals based on group membership—in particular, membership in groups that have been victims of historical practices of subordination (e.g., African-Americans in the United States, though more recently, transgender individuals)—is alleged to “silence” members of that group and do “violence” to them.   

Law & Philosophy Fellowship at the University of Chicago Law School, 2018-19

Here's the official ad, which will be on-line at PhilJobs before long:

THE UNIVERSITY OF CHICAGO LAW SCHOOL. The University of Chicago Law School seeks a Law and Philosophy Fellow, appointed with the rank of Lecturer, for the academic year 2018-19. This is a twelve month appointment and is expected to begin July 1, 2018. 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 new or recent PhDs or tenure-stream faculty interested in spending a year at the Law School. The Fellow will co-teach the Law & Philosophy Workshop with Brian Leiter on the theme of “Enlightenment liberalism and its critics, left and right.”  AOS:  Political philosophy, with knowledge of the Marxian tradition essential and knowledge of Schmitt a plus; AOC:  open.  Students will read and discuss texts by Kant, Mill, Marx, Herbert Marcuse, and Carl Schmitt, among others.  The Workshop will meet about 12-14 times over the course of the year, with some sessions devoted to discussing the primary texts with enrolled students, and others to invited speakers working on these thinkers and themes.  The Fellow will also be asked to supervise student papers, and to contribute to the intellectual life of the Law School, as well as pursue his or her research. Salary $55K + benefits + superb research environment.  To be considered a candidate for this position you must apply on-line through the University website at https://academiccareers.uchicago.edu/applicants/Central?quickFind=55287  by January 19, 2018. 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 Mr. Joe Pellettiere at The University of Chicago Law School, 1111 E. 60th St., Chicago, IL 60637 with a postmark not later than January 19, 2018.

The University of Chicago is an Affirmative Action/Equal Opportunity/Disabled/Veterans Employer and does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, status as an individual with a disability, protected veteran status, genetic information, or other protected classes under the law. For additional information please see the University's Notice of Nondiscrimination at http://www.uchicago.edu/about/non_discrimination_statement/. Job seekers in need of a reasonable accommodation to complete the application process should call 773-702-0287 or email [email protected] with their request.

JD/PhD Programs in the U.S. (and elsewhere): A Comment (revised)

ORIGINALLY POSTED MARCH 2008; A REVISED VERSION WAS POSTED SEPTEMBER 2011; NOW REPOSTED WITH SUBSTANTIAL REVISIONS IN LIGHT OF CHANGES IN THE INTERIM

I've had some inquiries lately about the section on the study of philosophy in law schools in the PGR like this one:

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 (primarily a selection effect, together with alumni networks), and these four are 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.)

"Legal Positivsm about the Aritfact Law: A Retrospective Assessment," the final version...

...is now on SSRN.

Political polarization--as measured by "news" sources--is worse on the right in America

This is interesting, and the only solution, I fear, is the one I discuss here.

"Justifying Academic Freedom: Mill and Marcuse Revisited," revised version now on-line...

...here.  The last version benefitted from talks and workshops at Iowa, Tel-Aviv, Haifa, and Chicago.  The abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.

Will the U.S. Supreme Court put an end to the partisan gerrymander?

This is a really, really, really important case.  My law school colleague Nicholas Stephanopoulos is responsible for the theory that prevailed in the lower courts; if he succeeds at the super-legislature, this would be, as Dopey Donald Chump would say, "huge."

More on Judge Gorsuch, plagiarism, and Oxford

Leslie Green, who holds one of the two statutory (i.e., university-wide) Chairs in Philosophy of Law at Oxford, has now expanded on his thoughts about the Gorsuch plagiarism case and the claims of John Finnis (who held a personal chair in legal philosophy, but is now emeritus).  (Earlier posts here and here.)

Not "freedom of speech," but "freedom of [specific kinds of] expression"

Philosopher Robert Simpson (Monash) comments.

(Thanks to Jerry Dworkin for the pointer.)

"Justifying Academic Freedom: Mill and Marcuse Revisited"

A new draft paper that may be of interest to some readers; the abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate

 

"Naturalism in Legal Philosophy" now revised and updated at the Stanford Encyclopedia of Philosophy...

..and also now co-authored with Max Etchemendy, our Law & Philosophy Fellow this year at Chicago.

Dworkin on Gorsuch's book (his Oxford DPhil) on assisted suicide

This is illuminating.  As Dworkin notes early on, the dialectically feeble anti-gay bigotry and other sectarian prejudices of his supervisor John Finnis should not be imputed to Gorsuch, and while the book does not license much in the way of predictions about he will decide cases, it is not a persuasive argument on its own merits.

On the U.S. Supreme Court and what's really at stake with Judge Gorsuch's nomination

A short opinion piece in The Washington Post.  Nothing really new here for those readers who have read some of my articles on this general topic.

"The Roles of Judges in Democracies: A Realistic View"

A new paper that might be of interest to some readers; the abstract:

What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.

Gorsuch, Garland, and the U.S. Supreme Court

Judge Gorsuch, nominated by President [sic]  Trump for the U.S. Supreme Court, is a graduate of Harvard Law School and a former Supreme Court clerk himself.  Judge Garland, nominated last year by President Obama for the Supreme Court, is a graduate of Harvard Law School and a former Supreme Court clerk himself.  Both are currently sitting federal courts of appeal judges.  The Republicans, it will be recalled, refused to even consider Judge Garland; they are now demanding, of course, prompt consideration of Judge Gorsuch.  What's going on? This is what's going on.

Some publications and working papers this year

I appreciate the many blog readers who also read my scholarly writing--it has been one of the best things about the blog for years that it has been a vehicle for sharing my work with other faculty and students across many fields.   In that spirit, here are publications--or working drafts--that I made available this year:

"The Case Against Free Speech" appeared in Sydney Law Review.

"Legal Positivism about the Artifact Law," forthcoming in an OUP volume on Law as Artifact.

"Theoretical Disagreements in Law: Another Look," forthcoming in an OUP volume on Ethical Norms, Legal Norms:  New Essays in Metaethics and Jurisprudence.

"Philosophy of Law," co-authored with Michael Sevel, in the Encyclopedia Britannica (if you can't access the whole essay, google "philosophy of law," it should come up as a top result and you can get the whole essay that way)

"The Paradoxes of Public Philosophy," in the inaugural issue of the Indian Journal of Legal Theory.

"Why Tolerate Religion, Again? A Reply to Michael McConnell," a working paper (but citable) at SSRN.  (McConnell is a leading conservative religious liberty advocate and law professor at Stanford)

"Reply to Five Critics of Why Tolerate Religion?", part of a symposium on my book published by Criminal Law and Philosophy this year.

A revised version of "The Death of God and the Death of Morality," which will eventually appear in a special issue of The Monist on Nietzsche.

"Moralizing Nietzsche's Moral Psycology: The Case of Katsafanas," which also appears at Notre Dame Philosophical Reviews.

"Moralities are a Sign-Language of the Affects," appeared in 2013 in Social Philosophy and Policy, but I was now able to make the published PDF available on SSRN.

There were actually a couple of other papers I wrote this year that I could not put on SSRN, alas--though hopefully, like the last paper, I will be able to post them in the future after publication.

"The Case Against Free Speech"

This long-gestating paper has finally appeared in the Sydney Law Review (it was the 2013 Julius Stone Address in Jurisprudence at Sydney), and can be downloaded here for those who are interested.  This year's electoral catastrophe just underlines the crucial Millian point, namely, that well-being in America will remain in danger as long as Breitbart, Drudge, Fox and the other fact-free media are allowed to operate freely.

Why Tolerate Religion, redux?

In Italian!  (And translated by the legal philosopher Giovanni Ratti from Genoa.)

"Legal Positivism about the Artifact Law"

My contribution to a forthcoming OUP volume, sparked by interest in the claim by me and others that law is an artifactual not a natural kind and the ramifications of that for a theory of law.