Jurisprudence
-
“The Roles of Judges in Democracies: A Realistic View”: the podcast…
…with Professor Brian Frye (Kentucky), regarding this article. My thanks to Professor Frye for inviting me to discuss it!
-
Justice Amy Coney Barrett, newest member of the super-legislature…
…delivers for her constituents, i.e., religious conservatives. This is why she was chosen, it had nothing to do with intelligence or legal competence: it was so she would exercise her power as a super-legislator on behalf of issues dear to religious conservatives, public health or the general welfare be damned. Governor Cuomo should declare the…
-
Clearing away some jurisprudential myths
The myth that H.L.A. Hart had a "practice theory" of rules. The myth that the so-called "normativity" of law presents a problem for legal positivism, let alone a special or interesting one. The more recent myth that Hart made any kind of "category mistake" in his account of social rules or the rule of recognition.…
-
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…
-
Harvard’s Noah Feldman thinks his friends and former co-clerks are “brilliant” and should be on SCOTUS
That's the short version, I think. (I could count on one hand the number of "brilliant" people I've met in the legal academy, but maybe I don't use it in the hyberbolic way Yale graduates do!) Joking aside, there's no doubt Judge Amy Coney Barrett is a smart and capable lawyer. But Professor Feldman knows…
-
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…
-
Today in falsehoods about Nietzsche, courtesy of the “Jurisprudence & Legal Philosophy ejournal” from SSRN…
…which is one of the handful I subscribe to, even though about a quarter of the content is not "jurisprudence & legal philosophy" (authors self-select categories, and the ejournal editors are rather too tolerant). Yesterday's ejournal included a piece by Professor Nicholas Aroney (Queensland), whom I do not know, writing about "The Rise and Fall…
-
“Legal Positivism as a Realist Theory of Law”
The penultimate version is now online; main change was in the final section, discussing Raz's "Service Conception" of authority.
-
“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).
-
“What is a realist theory of law?”
This article of mine is now out in the Journal of Institutional Studies, edited by faculty at the Federal University of Rio de Janeiro, for those who might be interested. (Most articles in Portuguese, but mine appears in English. A Spanish translation will also appear this year in Revista Iuris Dictio in Ecuador.)
-
The realist critique of “formalism” according to Solum
Larry Solum's Legal Theory Lexicon is a useful resource, although I don't always agree with all its entries. This one on the "realist" critique of formalism is really just a description of the argument in one paper by Felix Cohen. It's a fine description of the argument in that paper but it is not representative…
-
“What makes the San Diego originalism conference so good”…
…as described by my colleague Will Baude also explains exactly what makes the AALS annual meetings so worthless from an intellectual point of view. The annual Analytic Legal Philosophy conferences used to be good in this way too for the first ten years or so, although not so much anymore unfortunately.
-
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.
-
Trump nominee to the 9th Circuit has a record as an apologist for creationism
As a student at Harvard Law School fifteen years ago, Lawrence VanDyke (Trump's nominee) published an incompetent apologia for Intelligent Design creationism, under the guise of a "review" of a book shilling for creationism, in the Harvard Law Review. I excoriated it on my philosophy blog, while further efforts by Mr. VanDyke to defend himself…
I am very pleased to have stumbled upon this site. I am Andrew & Lynne’s nephew, Peter. My mother was…