Jurisprudence
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“Politics by Other Means: The Jurisprudence of ‘Common Good Constitutionalism’”
This forthcoming essay may interest some readers; the abstract: Adrian Vermeule proposes an alternative to the two dominant schools of constitutional interpretation in the United States: originalism and “progressivism” (i.e., “living constitutionalism”). Against these approaches, he argues courts (and other institutional actors) should explicitly interpret the text of the Constitution, statutes, and administrative decrees with…
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CFP for the conferences in honor of Joseph Raz…
…at King's College, London and Columbia Law School.
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Etchemendy on “Legal Realism and Legal Reality”
This is the best paper on legal realism to appear in a law review in many, many years. It's telling about the unreliability of the student-edited law reviews that a paper of this caliber should appear in the Tennessee Law Review (kudos to them for picking it up), while much weaker articles have appeared in…
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“Alf Ross’s Critique of American Legal Realism–and a Naturalistic Critique of Ross”
This draft paper (for a conference on Scandinaivan Legal Realism later this month at York) may interest some readers; the abstract: The new edition (by Jakob Holtermann and Uta Bindreiter) of Alf Ross’s seminal work ON LAW AND JUSTICE presents an opportunity to reevaluate Ross’s contribution to a naturalistic jurisprudence, as well as the relation…
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What is the difference between the Warren Court and the Roberts Court?
To read this, one might think it was that the latter, unlike the former, pursues partisan political objectives. By contrast, I would have thought the difference is that the former pursued worthy and valuable moral and political objectives, while the latter generally does not. See generally. It's often said "we're all realists now," but it's…
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“Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature” (2015)
Recent events are making this assessment ever more relevant, sad to say.
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Legal realism and the Supreme Court
I talk with Prof. Eric Segall (Georgia State) on his podcast "Supreme Myths" (also available on Spotify and other podcast platforms).
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“Anglophone Analytic Legal Philosophy”
This paper might be of interest to some readers; the abstract: This essay examines Anglophone analytic legal philosophy in comparison to Professor Aldo Schiavello's account of Italian (and also, more broadly, non-Anglophone) analytic legal philosophy (in the same volume). The focus, in particular, is on legal positivism in H.L.A. Hart, Norberto Bobbio, and Alf Ross,…
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“Realism about Precedent”
This paper may interest some readers; the abstract: In jurisdictions with a doctrine of precedent, later courts are bound only by those earlier decisions which are “on point” or “the same in relevant respects” to the case currently before the court. Since cases are never identical in all particulars, this always requires figuring out which…
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“The Epistemology of the Internet and the Regulation of Speech in America”
The final version of the paper (which will appear in a symposium issue of the Georgetown Journal of Law & Public Policy) is now on SSRN. I've been gratified by the interest this paper has already attracted, and how useful many legal scholars, especially, have found the notion of epistemic authority. Here is the abstract:…
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“The Most Important Problem of Contemporary Legal Philosophy”
Papers from an international conference last May are now out in Annals: Belgrade Law Review, with contributions by Pierluigi Chiassoni (Genoa), Tomasz Gizbert-Studnicki (Jaggellonian U, Krakow), Frederick Schauer (Virginia),Torben Spaak (Stockholm), and myself. My paper, "Back to Hart," can be downloaded here; the abstract: The essay addresses two different senses of important “problems” for contemporary…
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“The Epistemology of the Internet and the Regulation of Speech in America”
A draft of this paper is now available, which will be presented at Georgetown next month. It picks up on some ideas first mentioned in an earlier blog post and presentation in Turin, which generated a lot of interest: finally there is a shareable paper. Here is the abstract:
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“Back to Hart”
This paper may be of interest to some readers; the abstract: This essay is part of a symposium on "The Most Important Contemporary Problem in Legal Philosophy." The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart,…
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New Facebook group for those interested in “Experimental Jurisprudence”
Here. (Thanks to Roseanna Sommers [Michigan] for calling this to my attention on Twitter.)
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I talk about the Supreme Court and legal realism…
…at Brain in a Vat, where I also learned a bit about South African constitutional law.
And the second paragraph?