Via Solum, I learn that my (part-time) colleague Les Green's (long-gestating) paper on "Law and the Causes of Judicial Decision" is finally on SSRN (it will appear in final form in Green's forthcoming collection of papers from OUP). I have a number of quibbles about Leiter interpretation (the most important is that I've noted since at least my 1996 essay on Realism for The Blackwell Companion to the Philosophy of Law and Legal Theory that Felix Cohen was guilty of the kind of conceptual rule-skepticism Hart attacks--though oddly Hart never cites Cohen), but the core challenge is an interesting and novel one.
On my account, most Realists are committed to the claim that the law (more precisely, legal reasoning) proves to be indeterminate in most of the cases that reach the stage of appellate review. This indeterminacy arises, on the Realist argument, from the fact that there exist equally proper but conflicting ways of interpreting authoritative sources of law (like statutes and prior court decisions) such that the same source can yield conflicting rules (think of Llewellyn on the canons of statutory construction and the strict and loose view of precedent). (Jerome Frank is an exception to this generalization, since he thought the crux of indeterminacy in legal reasoning resided in the latitude judges have in characterizing the facts of the case in terms of their legal significance, and so he thought intedeterminacy was pervasive. I bracket his idioynscratic views here.) In Green's terminology, the Realists deny that at the appellate level, cases are governed by "mandatory norms," i.e., rules that impose obligations on the judges to decide the case just one way and not any other.
But Green's challenge is: on what grounds can we cabin the argument for indeterminacy just noted to only those cases that reach the stage of appellate review? In fact, their arguments for rule-skepticism (for indeterminacy) ought to entail that there are no mandatory norms anywhere in the legal system. And any theorist who denies that there are any mandatory norms is denying something H.L.A. Hart (among many others!) affirms. So, contra my presentation, there is a significant incompatibility between the positivist theory of law and Legal Realism. Green's proposed solution to the dilemma is to suggest that we should understand the Realists to indeed recognize that there are legal norms, but to hold that they are all only "permissive" rather than mandatory: they provide easily defeasible reasons for decision, reasons that are often defeated at the appellate level, less often in more humdrum cases.
Now the notion of a "permissive" legal source is interesting in its own right, but the question I need to answer is why the Realist arguments for the indeterminacy of legal reasoning, which they deploy to good effect with respect to tons of examples drawn from appellate decisions, do not in fact entail denying the existence of any mandatory legal norms. Here is one possibility (I am here truly "thinking out loud," though this thought has some resonance with issues raised in the context of explaining theoretical disagreements): even if, in principle, the same conflicting methods of interpretatino could be applied in non-appellate cases, in fact, they are not, and officials (more or less) converge on the same results. So, in principle, all norms are merely "permissive" (in something like Green's sense), but in fact lots of legal norms act as if they are mandatory because of this fact about the actual interpretive practice of officials.
A new poll, which might provide some useful information for younger scholars figuring out where to submit their work.
UPDATE: I should probably remind readers that I am no longer an editor of Legal Theory (I served in that capacity from 2000 through the middle of last year), though I remain on the editorial board. (Les Green and I are editing the new Oxford Studies in the Philosophy of Law, which, for now, involves only comissioned pieces [the first volume will include new essays by Gardner, Perry, Greenberg, Laudan, Guastini, Baron, and Toh, among others].) Legal Theory will soon have in place a great new lead editorial team, consisting of Matt Adler (Penn), David Brink (UC San Diego), Connie Rosati (Arizona), and Scott Shapiro (Yale). Larry Alexander (San Diego) and Jule Coleman (Yale) are still editors during the transition.
I was pleased to see the strong representation for law-and-philosophy typesin Solum's initial listing of junior hiring by U.S. law schools; indeed, it looks like the PhD in philosophy dominates all other disciplines among the JD/PhDs in the pool so far! The new hires are:
Brooklyn Law School: Brian Lee (JD Yale 2008, PhD Princeton 1999).
Louisiana State University: Ken Levy (JD Columbia 2002, PhD Rutgers 1999).
Saint Louis University: Chad Flanders (JD Yale 2007, PhD Chicago 2004).
Southwestern University: Caleb Mason (JD Georgetown 2005, PhD Columbia 2001).
Villanova University: Michelle Madden Dempsey (JD Michigan 1996, DPhil [Jurisprudence] Oxford 2008).
It does not appear that any of the new hires are products of JD/PhD programs, and I don't know how central law-and-philosophy work is for all these newly appointed faculty (though I know it is important for several of them).
Congratulations to all!
Alas, dear readers, someone sent me a link to a Condorcet polling site, which made cooking up a new poll irresistible. It tracks IP addresses, so no strategic voting! And remember that 19th is the default ranking--if you don't want to score a school, choose 'no opinion.'
ALERT: "L. Green" should have an # for part-time, not an * for 'over 70 in 2009' next to his name! Sorry about that.
ANOTHER: Gary Watson was wrongly omitted from the Southern California list--he is now roughly one-third in law, two-thirds in philosophy at USC since this past fall.
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