New Location for Legal Theory Blog
The new location for Legal Theory Blog is:http://lsolum.typepad.com/legaltheory/
posted by Lawrence Solum 6:36 AM
Supporting Information re New Faculty at Major American Law Schools
I've received some supplemental information since this was originally posted. I will update this post as new information comes in, but I will wait at least a few days before updating the charts at Hiring Trends at 18 "Top" American Law Schools on Legal Theory Blog.Columbia
Michael Doyle
No JD Institution
PhD Political Science
Ariela Dubler
JD Yale
PhD History
Jeffrey A. Fagan
No JD Institution
PhD Public Health (unconfirmed)
Merritt B. Fox
JD Yale
PhD Economics
Zohar Goshen
JD Hebrew University
SJD Yale
Michael Heller
JD Stanford
No PhD
Benjamin L. Liebman
JD Harvard
No PhD
Petros Mavroides
JD Brussels
DJuris Law
Thomas Merrill
JD Chicago
No PhD
Gillian Metzer
JD Columbia
No PhD
Edward R. Morrison
JD Chicago
PhD Economics
Katharina Pistor
JD University of Freiburg
Dr. Jur. Law
Alex Raskolnikov
JD Yale
No PhD
Catherine Sharkey
JD Yale
No PhD
William H. Simon
JD Harvard
No PhD
John Fabian Witt
JD Yale
PhD History
Cornell
Michael Heise
JD Chicago
PhD Public Policy
Robert Hockett
JD Kansas
SJD Yale
Mitchel de S.-O.-l’E. Lasser
JD Harvard
PhD Comparative Literature
Jeffrey S. Lehman
JD Michigan
No PhD
Bernadette Meyler
JD Stanford
PhD English
Trevor Morrison
JD Columbia
No PhD
Annelise Riles
JD Harvard
PhD Anthropology
Emily Sherwin
JD Boston University
No PhD
W. Bradley Wendel
JD Duke
JSD Law
Duke
Stuart Benjamin
JD Yale
No PhD
Erwin Chemerinsky
JD Harvard
No PhD
Catherine Fisk
JD Berkeley
No PhD
Ralf Michaels
JD University of Passau
No PhD
Joost Pauwelyn
JD University of Namur
PhD Law
Jedediah Purdy
JD Yale
No PhD
Arti Rai
JD Harvard
No PhD
Barak Richman
JD Harvard
No PhD
James Salzman
JD Harvard
No PhD
Neil Siegel
JD Berkeley
PhD Jurisprudence & Social Policy
Lawrence Zelenak
JD Harvard
No PhD
Georgetown
William Bratton
JD Columbia
No PhD
Michael R. Diamond
JD Fordham
No PhD
James Forman
JD Yale
No PhD
Gaurang Mitu Gulati
JD Harvard
No PhD
John Mikhail
JD Stanford
PhD Philosophy
Daniel K. Tarullo
JD Michigan
No PhD
John R. Thomas
JD Michigan
No PhD
Ethan Yale
JD Tulane
No PhD
Kathryn Zeiler
JD USC
PhD Economics
Harvard
Jack Goldsmith
JD Yale
No PhD
Ryan Goodman
JD Yale
PhD Sociology
Elena Kagan
JD Harvard
No PhD
John Manning
JD Harvard
No PhD
Guhan Subramanian
JD Harvard
No PhD
NYU
Jennifer H. Arlen
JD NYU
PhD Economics
Lily Batchelder
No information on JD
No information on PhD
Kevin Davis
No information on JD
No information on PhD
Noah Feldman
JD Yale
PhD Oriental Studies
David Golove
JD Berkeley
No PhD
Daryl Levinson
JD Virginia
No PhD
Deborah Malamud
JD Chicago
No PhD
Stephen R. Perry
JD Toronto
D.Phil. Philosophy
Richard H. Pildes
JD Harvard
No PhD
Cristina Rodriguez
JD Yale
No PhD
Stephen J. Schulhofer
JD Harvard
No PhD
Rebecca L. Tushnet
JD Yale
No PhD
Joseph H.H. Weiler
JD Cambridge
PhD Discipline unknown
Katrina Wyman
JD Toronto
No PhD
Northwestern
Ronen Avraham
JD Bar Ian University
SJD Law
Tonja Jacobi
JD Australian National University
PhD Political Science
John O. McGinnis
JD Harvard
No PhD
Jide Nzelibe
JD Yale
No PhD
Claire Priest
JD Yale
PhD History
Max Schanzenbach
JD Yale
PhD Economics
Robert H. Sitkoff
JD Chicago
No PhD
Emerson Tiller
JD Indiana
PhD Business
Albert Yoon
JD Stanford
PhD Political Science
Kimberly Yuracko
JD Stanford
PhD Political Science
Stanford
Mariano-Florentino Cuellar
JD Yale
PhD Political Science
Robert Daines
JD Yale
No PhD
Amalia Kessler
JD Yale
PhD History
Larry Kramer
JD Chicago
No PhD
Michele Landis Dauber
JD Northwestern
PhD Sociology
Mark A. Lemley
JD Berkeley
No PhD
Jenny S. Martinez
JD Harvard
No PhD
Alison Morantz
JD Yale
PhD Economics
University of California at Berkeley
Kathryn Abrams
JD Yale
No PhD
Christopher F. Edley, Jr.
JD Harvard
No PhD
Aaron S. Edlin (joint)
JD Stanford
PhD Economics
Daniel A. Farber
JD Illinois
No PhD
Anne Joseph
JD Yale
PhD Political Science
Goodwin Liu
JD Yale
No PhD
Jonathan Simon
JD Berkeley
PhD Jurisprudence & Social Policy
Norman Spaulding
JD Stanford
No PhD
UCLA
Steven Bank
JD Chicago
No PhD
Stuart Banner
JD Stanford
No PhD
Scott L. Cummings
JD Harvard
No PhD
Victor Fleischer
JD Columbia
No PhD
Mark F. Grady
JD UCLA
No PhD
Mark Greenberg (joint)
JD Berkeley
PhD Philosophy
Russell Korobkin
JD Stanford
No PhD
Neil W. Netanel
JD Stanford
JSD Stanford
Michael Schill
JD Yale
No PhD
Katherine van Wezel Stone
JD Harvard
No PhD
Samuel C. Thompson, Jr
JD Penn
No PhD
Adam Winkler
JD NYU
No PhD
Noah Zatz
JD Yale
No PhD
University of Chicago
Adam Cox
JD Michigan
No PhD
Carolyn Frantz
JD Michigan
No PhD
Bernard E. Harcourt
JD Harvard
PhD Political Science
Catherine MacKinnon (part-time)
JD Yale
PhD Political Science
Adam Samaha
JD Harvard
No PhD
Lior J. Strahilevitz
JD Yale
No PhD
University of Michigan
Michael S. Barr
JD Yale
No PhD
Laura N. Beny
JD Harvard
PhD Economics
Hanoch Dagan (part-time)
JD Tel Aviv
JSD Yale
Alicia Davis Evans
JD Yale
No PhD
David M. Hasen
JD Yale
PhD Political Science
Jill R. Horwitz
JD Harvard
PhD Public Health
Vik S. Khanna
JD Harvard
SJD Law
Edward A. Parson (joint)
No JD
PhD Public Policy
John A.E. Pottow
JD Harvard
No PhD
Richard Primus
JD Yale
DPhil Political Science
Steven R. Ratner
JD Yale
No PhD
Rebecca J. Scott (joint)
No JD
PhD History
Molly S. van Houweling
JD Harvard
No PhD
University of Pennsylvania
Eric A. Feldman
JD Berkeley
PhD Jurisprudence & Social Policy
Claire Finkelstein
JD Yale
PhD Philosophy
Kristin Madison
JD Yale
PhD Economics
Gideon Parchomovsky
JD Hebrew University of Jerusalem
JSD Yale
Nathaniel Persily
JD Stanford
PhD Political Science
Wendell E. Pritchett
JD Yale
PhD History
Paul H. Robinson
JD UCLA
No PhD
Theodore Ruger
JD Harvard
No PhD
Chris Sanchirico
JD Yale
PhD Economics
Amy L. Wax
JD Columbia
MD Medicine
University of Southern California
Linda R. Cohen
No JD
PhD Economics
Elizabeth Garrett
JD Virginia
No PhD
Howard Gillman (joint)
No JD
PhD Political Science
Gillian K. Hadfield
JD Stanford
PhD Economics
Timur Kuran (joint)
No JD
PhD Economics
Andrei Marmor (part-time)
JD Tel Aviv
DPhil Philosophy
Kevin J. Murphy (joint)
No JD
PhD Economics
Hilary M. Schor
No JD
PhD English
University of Texas
Bernard S. Black
JD Stanford
No PhD
Oren Bracha
JD Tel Aviv
SJD Law
John Deigh (joint)
No JD
PhD Philosophy
Jane M. Cohen
JD Yale
No PhD
Karen Engle
JD Harvard
No PhD
Leslie J. Green (part-time)
No JD
PhD Philosophy
Kate Litvak
JD Stanford
No PhD
Ronald J. Mann
JD Texas
No PhD
Robert Peroni
JD Northwestern
No PhD
H.W. Perry (joint)
No JD
PhD Political Science
Mary Rose (joint)
No JD
PhD Psychology
Lawrence G. Sager
JD Columbia
No PhD
Jane Stapleton (part-time)
JD Australian National University
PhD Discipline Unknown
Mark G. Yudof
JD Penn
No PhD
University of Virginia
Rosa Ehrenreich Brooks
JD Yale
No PhD
Risa L. Goluboff
JD Yale
PhD History
Mitchell A. Kane
JD Virginia
No PhD
Anup Malani
JD Chicago
PhD Economics
Thomas B. Nachbar
JD Chicago
No PhD
Richard C. Schragger
JD Harvard
No PhD
A. John Simmons (joint)
No JD
PhD Philosophy
George G. Triantis
JD Toronto
JSD Law
Ann Woolhandler
JD Harvard
No PhD
Timothy Wu
JD Harvard
No PhD
Vanderbilt
Margaret M. Blair
No JD
PhD Economics
Mark E. Brandon
JD Alabama
PhD Political Science
Allison Marston Danner
JD Stanford
No PhD
E. Gordon Gee
JD Columbia
EdD Education
Tracey George
JD Stanford
No PhD
Chris Guthrie
JD Stanford
No PhD
Laurence Helfer
JD NYU
No PhD
Owen D. Jones
JD Yale
No PhD
Beverly I. Moran
JD Penn
No PhD
Richard Nagareda
JD Chicago
No PhD
Erin A. O’Hara
JD Georgetown
No PhD
Michael P. Vandenbergh
JD Virginia
No PhD
Yale
Yochai Benkler
JD Harvard
No PhD
Richard Brooks
JD Chicago
PhD Economics
Amy L. Chua
JD Harvard
No PhD
John J. Donohue III
JD Harvard
PhD Economics
Oona Hathaway
JD Yale
No PhD
Jonathan R. Macey
JD Yale
No PhD
Daniel Markovits
JD Yale
DPhil Philosophy
Robert C. Post
JD Yale
PhD History
Henry E. Smith
JD Yale
PhD Linguistics
posted by Lawrence Solum 11:23 AM
Samberg-Champion Reacts
Sasha Samberg-Champion writes:I read your interesting post on Legal Theory Blog today, in which you advocate that Supreme Court Justices both (1) adhere more closely to formalism and (2) compromise with each other more in order to forge stable majorities. But I wonder how compatible these two ideas are?
Right now, it could be argued that the problem is that we have _too much_ formalism -- that is, competing formalism. On many issues we have two blocs of formalists -- albeit drawing very different conclusions from what they would consider a formal reading of precedent and constitutional interpretation. This is possible because each side sees only its own opinions as valid precedent. The liberals are internally consistent and the conservatives are internally consistent, but neither gives any particular weight to a 5-4 opinion written by one of the other side's Justices when that side happened to swing O'Connor in a particular case -- and nor should they.
The problem is, in many cases in which O'Connor is the swing vote and she doesn't write the opinion, the opinion is virtually worthless as precedent because it doesn't tell us what influenced O'Connor to join the majority and not the dissent -- it tells us what Scalia or Stevens thinks is the law and the important facts. The result is that we have two distinct lines of caselaw in each such field, a Scalia line and a Stevens line, often difficult to reconcile, and then O'Connor and to some extent Kennedy can pick and choose from them based on the facts of the case.
One solution to this problem, as you suggest, would be for the majority opinion writer to move towards the middle to "restate" the law in a way that would be agreeable to more than 5 Justices. (Or for O'Connor to write at least a concurrence in every case to explain her controlling position, a la the Powell opinion in Bakke, but that's far too much to ask of one Justice unless you provide her with an additional set of clerks.) In theory, that's what's supposed to happen in chambers to some extent, as the opinion writer incorporates the varied opinions of members of his/her majority and tries to add more votes.
But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like? Am I missing something here?
Moreover, the Turley idea of increasing to 19 the number of Justices on the Court would disserve the ideal of compromise. The whole point of having a small number of Justices is to let everyone hash out ideas and come to some consensus. The more people you put in the room, the more likely you will end up settling cases by simple vote and political power rather than reasoned discussion. If anything, the way to achieve compromise
is to knock off a couple of Justices.
posted by Lawrence Solum 12:24 PM
* = acceptability curve for left judicial selector.
# = acceptability curve for right judicial selector
___________________Acceptability Frontiers for President & Senate
__Realist1|
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________15|
________16|_______*__________________________________________________________________#
________17|
________18|
________19|__________*____________________________________________________________#
________20|
________21|
________22|_____________*______________________________________________________#
________23|
________24|
________25|_________________*______________________________________________#
________26|
________27|
________28|_____________________*______________________________________#
________29|
________30|
________31|__________________________*______________________________#
________32|
________33|
________34|_______________________________*____________________#
________35|
________36|
________37|_______________________________________*____#
________38|
________39|
________40|__________________________________#____________*
________41|
________42|
________43|_______________________#_________________________________*
Formalist_________________________________________________________________________________
__________Left_______________________________________________________________________Right
__________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
posted by Lawrence Solum 11:13 AM
A Legal Scholars Journal: Index to the Posts
This is the index to the A Legal Scholars Journal posts on Legal Theory Blog:
posted by Lawrence Solum 10:57 AM
C.E. Petit Responds to Buck
C.E. Petit (of the very fine Scrivener's Error) responds to Stuart Buck's post commenting on my Getting to Formalism:I have a problem with Mr. Buck's analysis. It seems to conflate "denial of
certiorari" with "affirmance of circuit court." The intermediate case
reflects the reality of what is happening, or at least that I see happening
from my cynical vantage point. I suspect that the particular facts of
particular cases have a lot more influence on grant/denial of certiorari
than is otherwise acknowledged. Some of those facts are procedural (e.g.,
what lower court issued the opinion), some are substantive (e.g., just how
low is the convicted defendant's IQ?).
One difficulty with the whole question of stare decisis is just how much
"faith and credit" different courts give each other in different postures.
Federalism, in all its various forms, indicates that there can't be a single
formula for determining this, because the states have no obligation to
follow the same rule as would the US Supreme Court in fashioning their own
stare decisis rules. We don't even have to wade into the quagmire of renvoi
to see this. For example, I can't recall the last time that the Illinois
Supreme Court was reversed on a civil issue; all of the reversals that I can
think of offhand are on criminal matters. The Illinois Supreme Court seems
much less radical in following Justice Brennan's suggestion that states can
guarantee more rights in the civil arena, and thereby invoke the
"independent state grounds" argument, than is (for example) Alabama,
Connecticut, or California.
Then we can compare the treatment of the different circuit courts to each
other, and I don't just mean "let's trash the Ninth"--the Supreme Court
takes very few cases from the Federal Circuit, but its reversal percentage
is a lot higher than the Ninth's! (It's not a statistically valid sample,
though.) And the less said about what the Supreme Court does with Article I
court decisions (e.g., the Court of Appeals for the Armed Forces), the
better, because every possible analysis is anecdotal.
posted by Lawrence Solum 12:26 PM
Eden on The Socratic Method
John Eden emails these remarks responding to Brian Leiter on the Socratic Method:What Would Socrates Say?
In a recent blog Brian Leiter claims that it is high time we put the Socratic Method (SM) to rest. Or, more accurately, that the version of SM that is currently in vogue in many American law schools should be replaced by something that more effectively conveys the skills lawyers and legal academics need. I agree with Leiter that SM has its pitfalls, but I am not convinced that the inefficiencies of legal education are exclusively or even primarily attributable to SM, nor am I completely comfortable with the suggestion that academic philosophers are somehow smarter, on average, than their colleagues in law.
Is the Socratic Method the real problem?
In Leiter’s original post, it is claimed that SM 1) gets in the way of teaching the analytic skills used in legal reasoning and 2) is egregiously inefficient in conveying core course material. Let’s take each claim apart to see what’s inside. In support of both claims, Leiter points out that not only do many – indeed, probably all – law students turn to commercial outlines to learn the law, most bemoan the actual day to day irrelevancies of classroom instruction. I think both types of evidence point in a number of potential directions. For instance, the fact that law students actually learn their chosen trade through commercial outlines could be a result of laziness (Cf. ‘Brush with the Law,’ a book by two law students from Stanford and Harvard, respectively, which provides evidence for this claim.). Laziness, of course, is not alone a sufficient explanation. This is easy to see by considering the fact that in other competitive and intellectually challenging disciplines ambitious and diligent students consistently turn to commercial study aids in an effort effectively to learn the target material. For instance, undergraduates taking organic chemistry often use materials not assigned by their professors in an attempt to get a handle on a body of knowledge that is, at least from their vantage point, too arduous to master without extra guidance.
So what is so different about law school, one might ask? The appeal of the hornbook could, and in many cases primarily is, attributable to the intense pressure law students feel to perform well on exams. This pressure cannot be understood unless the unique nature of the legal market remains in full view: candidates are segmented primarily according to their grades, which results in what many law students feel (somewhat erroneously) is a zero-sum game. The plumb jobs, they assume, will all go to the victors in the grade game, and the so-called lesser jobs will be doled out to those unfortunate individuals which fate did not shine upon. In a context like this, the pressure to become a paper tiger is high, and commercial outlines are seen – irrationally, in my opinion – as an indispensable tool for the never-ending struggle to outmaneuver one’s competition. Like undergraduates taking organic chemistry, many law students feel the need to perform at a high level so that the carrot they’re after – a nice job at Cravath or a clerkship with Posner – will ultimately fall within reach.
But doesn’t substandard teaching exacerbate this problem? In some cases the answer is obviously ‘yes,’ but this is of no particular moment. The real problem which deserves attention is whether the pedagogical deficiencies of your average law professor actually do stem from her use of SM. About this claim I have my doubts. First, to use an arrow from Leiter’s quiver, there’s no firm empirical evidence that SM is an independent variable which negatively affects the degree to which legal skills are conveyed through classroom discussion. While it seems clear from the anecdotal evidence Leiter references that a sufficient proportion of law students find SM to be a loathsome method of transferring knowledge, this does not buttress the conclusion that SM is the bugbear. Hence, it may be quite reasonable to object to the vapid puffery that supporters regurgitate in the course of defending the “merits” of SM. But this sensible objection should not be confused with the controversial claim that SM is an inefficient way of imparting analytic capacities.
Second, there are a number of features of the law school classroom that confound our ability accurately to determine precisely what causes the ineffective transmission of knowledge. I will focus on only two of these features: 1) the tendency of professors to obscure what they expect students to know on an exam, which is sometimes known as ‘hide the ball’ and 2) the proclivity for law professors to don a magisterial, authoritative tone, thus unnecessarily creating an acute hierarchy between instructors and students which undermines free inquiry and fruitful discussion. Under one description, (1) does amount to a variation of hide the ball: By jealously guarding, even to the point of willfully obscuring, the particular point of law to which Jane Law-Professor is directing her students until the time is just right, a certain amount of confusion and irritation is produced in the anxious student body. Much of that confusion will not be remedied before exam time, with the likely result of mediocre or poor performance by students who are actually quite sharp and diligent. But there are two distinct problems here that should not be confused. One is best conceptualized as a failure of truth in advertising, not hide the ball: It is a failure of legal education that professors do not inform students that clever theories and magic words will be of no avail if they’re not able swiftly to apply basic black letter law principles to complex hypotheticals in the space of 3 or 4 short hours. As for the second problem, Leiter is absolutely right: there is something disquieting about keeping law students on the edge of their seats by keeping them ignorant during class meetings – this is the sine qua non of hide the ball. Yet while law professors may indulge in the temptation to hide the ball with greater frequency that your average, say, humanities professor, the law hardly has a monopoly on this repugnant method of instruction. I’ve been in more graduate philosophy seminars than I’d care to remember where the professor was in a position to enlighten her students on a critical question of interpretation but craftily avoided laying her cards on the table. And this is perhaps more worrisome in the academic philosophy community, since much of its collective knowledge is not on paper, but rather contained in the heads of its most illustrious practitioners.
What about (2), the problem of unnecessary hierarchy? I begin with a simple observation: Free inquiry and democratic discussion do not thrive in an environment of intimidation. This is true of forms of physical intimidation, and it is also true of most varieties of intellectual intimidation. Law students tend to think that law school is an unnecessarily hierarchical place. And when pressed to identify the principal cause of the hierarchy which they resent, the factor they identify is the non-collaborative, antidemocratic nature of classroom discussion. According to this complaint, such discussions are non-collaborative in that they do not really invite the full participation of each student. Students are formally free to assert their views with verve and conviction, but this is not the same thing as having the privilege of contributing to a discussion that is genuinely collective. To have that privilege requires a norm of openness according to which professors have a responsibility to take students’ views seriously as potential contributions to the collective judgment of the class about a particular issue.
On this model, the class owns the discussion, not the professor alone or the professor along with a small cadre of vocal students. And once we conceptualize hierarchy in this way, it becomes impossible to see it as having a necessary connection to, or correlation with, the Socratic Method. SM can surely be employed by a law professor in a non-collaborative, anti-democratic fashion; but then again, some professors of philosophy and history and comparative literature are quite adept at subtly undermining a collective approach to deliberation and problem solving in the classroom. Expunging the Socratic Method will not, unfortunately, automatically transform the hierarchical classroom into a fair, collaborative environment.
In addition, since Leiter expresses skepticism about the existence of “legal skills,” abilities allegedly somehow distinct from the analytical and critical capacities that non-lawyers possess, one might wonder why he disparages SM, a particular method of instruction, before determining what particular set of skills ought to be conveyed in law school. After all, if our primary objective is teaching generalized analytical skills – on the theory that there simply is no bundle of cognitive habits or skills that is unique to the legal profession – then it would be an open question whether our first priority should be selecting the optimal methods for inculcating such skills. Consider in this connection the following: Many who have been through law school claim that the most academically gifted law students fail to shine in practice, and they explain this pattern by claiming – probably in an exaggerated fashion – that there is a sharp dissonance between the skills one needs to make law review, on the one hand, and the more varied set of abilities required for becoming a great attorney, on the other. The suggestion here is that the classroom probably isn’t where great lawyers learn most of the skills they need to become exceptional members of the bar, and hence what goes on during class is of less long-term value than one might suppose. Of course, even if this were true it might still be meaningful to inquire as to the best method of conveying the distinctively academic skills one needs while in law school.
Are philosophers really smarter?
But regardless of which specific set of skills we’re trying to teach, Leiter believes we can do much better:
[The exceptional philosophical lecturers I’ve had he pleasuring of listening to in one class or another over the years – Paul Boghossian, Philip Kitcher, Peter Railton, David Velleman, Crispin Wright, among others – are, as thinkers and dialecticians, heads-and-shoulders above all but two or three law professors in this country. They could surely have taught the Socratic way, but they didn’t. They are, to repeat, the norm among philosophers.]
It is not entirely clear what is meant to follow from these remarks. However, if we assume that smarter people convey information more efficiently, and we want law schools to convey information in a more, rather than less, efficient way, then the philosophers should be in charge of instruction – since on average they’re clearly “head and shoulders” above the academic lawyers that fill the halls of our esteemed law schools. Setting aside the question of whether Leiter would countenance this little syllogism, is there anything wrong with this argument? Yes: It fails to recognize that although law professors and philosophers tend to share discursive and analytical capacities, they deploy these capacities to solve problems 1) under widely different constraints 2) using significantly different sets of doctrinal tools. Some might say that (1) and (2) do not get in the way of evaluating the respective intellectual virtues of law professors and philosophers, and hence Leiter’s claim that philosophers are “head and shoulders” above law professors could in principle be made simply by sitting in on a sufficient number of academic philosophy and law seminars or lectures, and then making a judgment call.
I don’t think it is at all easy to answer this question, and I’d like to illustrate what makes the question particularly challenging with an example from legal history. In The Common Law, Holmes famously argued that negligence is the lodestar of tort law for two reasons. First, it represents the golden mean between strict liability and a strict blameworthiness standard, and second, negligence is more effective than any other competing principle in providing publicly knowable norms of conduct to which agents with epistemic limitations can adhere to limit their liability.
Now, with the exception of folks like Ronald Dworkin and Liam Murphy who are familiar with and enamored of the methods of analytic philosophy, law professors use different tools to assess broad brush claims like these. But how are their tools different? Law professors have a tendency to approach Holmes’ claim from a theoretical perspective that does not treat the normative justification of the principle of negligence as the primary question in need of exploration. Of course providing a good justification for the principle of negligence is of some importance to the average law professor, but not for the same reasons as providing such a justification is important to a philosopher. To oversimplify greatly, a philosopher will be more interested in whether the norms of conduct that the principle of negligence recommends are themselves consistent with our moral psychology, and in whether those norms are morally justifiable to citizens on some highly technical and abstract theory of justice. An academic lawyer will place greater emphasis on how those legal norms have developed, whether they made sense given other social, political and economic changes, and, perhaps most importantly, whether those norms are likely to support or undermine policy objectives favored by a given school of legal theory. The philosopher’s aims are narrow, yet require a great deal of care, patience, and raw intellectual horsepower to adequately address; the academic lawyer’s concerns are wide, and require evaluating diverse types of information with care, pragmatic judgment, and a sensitivity to the challenges inherent in understanding and synthesizing historical, legal and economic data.
Insofar as this picture, which admittedly needs further development, captures something important about the methodological differences between law and academic philosophy, I think we ought to tread very carefully in endeavoring to compare intellectual prowess across disciplines which i) ask questions that sometimes look similar (but which are often very different upon closer examination) ii) by applying methods that only bear a rough family resemblance to one another (and hence are marked more by diversity than sameness). Leiter could retort that it is only by employing the methods of analytic philosophy that one can obtain the most elegant and defensible solutions to the core problems of legal theory; this, I take it, is an assumption that animates much of his own excellent work in the philosophy of law (e.g., Legal Realism and Legal Positivism Reconsidered, Ethics, Vol. 111, No. 2 (Jan., 2001)). But this riposte could only amount to a clever attempt to change the subject, for the issue under consideration here is whether philosophers are smarter than law professors, not whether law professors have all the tools they need.
posted by Lawrence Solum 5:39 PM