Legal Theory Blog

All the theory that fits!


This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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Friday, April 30, 2004
Entry Level Hiring (Update #27, Last Updated on May 3) Information on entry level hiring still continues to come in. So far 61 law schools have reported. Email me at if you'd like to add to the list or if you have a correction. My thanks to everyone who has generously shared information with me so far.
Here is are some interesting numbers:
    JD Institution Yale leads with 18, Harvard has 17 and Stanford (10) is close behind. Chicago has 6. Columbia, Michigan, Penn, Georgetown, Berkeley, and Virginia have 4 each. Texas is next with 3.
      Arizona-1 Australian National University-1 Boston College-1 Boston University-1 Columbia-4 Cornell-1 Chicago-6 Fordham-1 George Mason-1 George Washington-1 Georgetown-4 Georgia-1 Harvard-17 Hebrew-2 Howard-1 Kansas-2 Michigan-4 National Law School of India-1 North Carolina-1 Northwestern-1 NYU-1 Penn-4 Stanford-10 U of Arizona-1 UC Berkeley-4 UC Davis-1 UCLA-1 Tel Aviv-2 Texas-3 Toronto-1 Tulane-2 Vanderbilt-1 Virginia-4 William & Mary-1 Wisconsin-1 Yale-18
    PhD Discipline Philosophy leads with five placements, with Political Science (including Government, Political Theory, etc.) just behind with 4 placements. There must be more economics PhDs in the pool, but perhaps the economists realize that it is rational to be a free rider, gleaning the information submitted by others, but not submitting information yourself.
      Economics-1 English-1 History-2 Jurisprudence & Social Policy (Berkeley Program)-1 Middle Eastern Studies-1 Philosophy-5 Political Science-4 Psychology-2
And here are the hires by school in alphabetical order:
      Amanda Frost (JD Harvard)
    Arizona State
      Yariv Brauner (JD Hebrew University & JSD NYU)
      Adam Chodorow (JD Virginia & LLM NYU)
      Linda Demaine (JD Arizona & PhD Psychology Arizona State)
      Aaron Fellmeth (JD Yale)
      Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford)
      Orde Kittrie (JD Michigan)
    Boston College
      Mary-Rose Papandrea (J.D. Chicago)
    California Western
      Michael Yu (JD Columbia & LLM NYU)
      John Hall (JD Stanford & DPhil History Oxford)
      Donald Kochan (JD Cornell)
      Francine Lipman (JD UC Davis & LLM NYU)
      Daniel Hamilton (JD George Washington & Phd History Harvard)
      Michael Scodro (JD Yale Law)
      Carolyn Shapiro (JD Chicago JD)
      Alex Raskolnikov (JD Yale)
      Robert Hockett (JD Kansas & MA Oxford; JSD Yale)
      Bernadette Meyler (JD Stanford & PhD English UC Irvine)
      David Franklin (JD Chicago)
      Jedediah Purdy (J.D. Yale)
      Neil Siegel (JD & PhD Berkeley)
      Kimberly Jenkins (JD Harvard)
      Michael Kang (JD Chicago & PhD Government Harvard)
      Julie Seaman (JD Harvard)
      Robin Lenhardt (JD Harvard)
    Florida State
      Amitai Aviram (JD Tel Aviv & JSD Chicago)
      Curtis Bridgeman (JD & PhD Philosophy Vanderbilt)
      Jonathan Klick (JD & PhD Economics George Mason)
    George Mason
      Michelle Boardman (JD Chicago)
    George Washington
      Steve Charnowitz (J.D. Yale)
      Amanda Tyler (J.D. Harvard)
      John Mikhail (JD Stanford & PhD Philosophy Cornell)
      Ethan Yale (JD Tulane & LLM NYU)
      Hofstra: Michael Siebecker (JD Columbia & PhD Political Theory (expected) Columbia)
    Indiana, Bloomington
      Kevin Collins (JD Stanford)
    Loyola Marymount University
      Robin Kar (JD Yale & PhD Philosophy Michigan)
      Lauren Willis (JD Stanford)
    Loyola University (Chicago)
      Sacha M. Coupet (J.D., University of Pennsylvania; Ph.D., University of Michigan)
      Stephanie M. Stern ( JD Yale)
      Jason J. Czarnezki (J.D. Chicago)
      Scott A. Moss (J.D. Harvard)
    Michigan State
      Adam Candeub (J.D. Penn)
      Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
      Kristin Hickman (JD Northwestern)
      David Stras (JD & MBA Kansas)
      Tonja Jacobi (JD Australian National University & PhD Political Science (Expected) Stanford)
      Jide Nzelibe (JD Yale)
    Notre Dame
      No entry level hire this year.
    Ohio State
      Garry Jenkins (JD Harvard)
    Rutgers, Camden
      Greg Lastowka (JD Virginia)
      John Oberdiek (JD & PhD Philosophy Penn)
    Seton Hall
      Gaia Bernstein (JD Boston University & JSD (expected) NYU)
      Frank Pasquale (JD Yale & MPhil Oxford Politics)
      Paul Horwitz (LL.B. Toronto & LL.M. Columbia)
    St. Louis University
      Fred Bloom (JD Stanford)
      Nicole Porter (JD Michigan)
    Southern Methodist
      Jenia Iontcheva (JD Yale).
      Alison Morantz (JD Yale & PhD Economcis Harvard)
      Christopher Gibson (JD Berkeley)
      Aviva Abramovsky (JD Penn)
      Terry Turnipseed (JD & LLM Georgetown)
      Craig Green
      David Hoffman (JD Harvard)
      Duncan Hollis (JD Boston College)
    Texas Wesleyan
      Neal Newman (JD Howard)
      Aric Short (JD Texas)
    University of California at Berkeley
      Anne Joseph (JD Yale, Ph.D Harvard in Political Economics and Government)
    University of California at Davis
      Michelle Alexander (JD Stanford)
      Jennifer Chacon (JD Yale)
      Carlton Larson (JD Yale)
      Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
    University of California at Los Angeles
      Russell Robinson (JD Harvard)
      Noah Zatz (JD Yale)
    University of Chicago
      Adam Cox (JD Michigan)
      Adam Samaha (JD Harvard)
    University of Cincinnati
      Adam Steinman (JD Yale)
    University of Colorado
      Nestor Davidson (JD Columbia)
      Clare Huntington (JD Columbia)
    University of Connecticut
      Alexandra Lahav (JD Harvard)
    University of Georgia
      Kevin Jon Heller (JD Stanford)
      Erica Hashimoto (J.D. Georgetown)
    University of Kansas
      Elizabeth Weeks (JD Georgia)
    University of Kentucky
      Mark Kightlinger (JD & Ph.D., Philosophy, Yale)
    University of Nevada Las Vegas
      Tuan Samahon (JD Georgetown)
    University of Miami
      Mario L. Barnes (JD Berkeley)
    University of Nebraska
      Richard Moberly (JD Harvard)
    University of North Carolina
      Richard Myers (North Carolina)
    University of Oklahoma
      Mary Sue Backus (JD William and Mary)
    University of San Diego
      Adam Kolber (JD Stanford)
      David Law (JD Harvard & PhD Political Science Stanford)
      Lisa Ramsey (JD UCLA)
    University of South Carolina
      Josie Brown (JD Harvard)
      Josh Eagle (JD Georgetown)
      Joel Samuels (JD Michigan)
    University of Tennessee
      Jeffrey Hirsch (JD NYU)
    University of Texas
      Oren Bracha (JD Tel Aviv & SJD Harvard)
    University of Washington
      Kristin Stilt (JD Texas & PhD Middle Eastern Studies Harvard)
      Tiffany Graham (JD Virginia)
    Wake Forest
      No entry level hire this year.
    Washington & Lee
      Montre Underwood (JD Tulane)
      Melissa Waters (JD Yale)
    Western New England
      William Childs (JD Texas)
    Widener, Harriburg
      Ben Barros (JD Fordham)
      Michael Dimino (J.D. Harvard)
    William & Mary
      Eric Chason (JD Virginia)
      Nancy Combs (JD Berkeley)
      Erin Ryan (JD Harvard)
    William Mitchell
      Alexandra Klass (JD University of Wisconsin)
      John Radsan (JD Harvard)
This list will be revised, updated, and reposted on an irregular basis!
And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard).
Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information!

Values and Virtues at the University of Dundee I will be in Dundee Scotland this weekend attending the Conference on Values and Virtues at the University of Dundee.
The conference on Values and Virtues: Aristotelianism in Contemporary Ethics begins today at the University of Dundee in Scotland and continues through May 2. Here is the program:
    Friday 30 April 2004
      4 onwards Arrivals, registrations 5-7 Keynote address: Christine Swanton (University of Auckland, NZ) 730 Conference dinner
    Saturday 1 May 2004
      0900-1020 submitted papers 1040-1200 John Skorupski (University of St Andrews) 1300-1420 Theodore Scaltsas (University of Edinburgh) 1430-1550 Paul Russell (University of British Columbia) 1600-1720 submitted papers
    Sunday 2 May 2004
      0900-1020 submitted papers 1040-1200 Sarah Broadie (University of St Andrews) 1300-1420 Antony Duff (University of Stirling) 1430-1550 Adam Morton (University of Oklahoma) 1600-1720 Linda Zagzebski (University of Oklahoma) 1830 Conference ends

Friday Calendar
    At the University of Dundee (today through Sunday), Values and Virtues: Aristotelianism in Contemporary Ethics. See you there!
    At SUNY Buffalo, Jack Schlegel, UB presents Notes Toward a General Theory of Civil Liability and the Escape from the Plaintiff's Lawyer's Nose
    At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective.
    At the University of Texas, the first day of a Conference on Constitutional Concepts.
    At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning.

Conference Announcement: Homeland Security & Civil Liberties
    U.S. Army War College - Penn Law Conference on "Homeland Security and Civil Liberties" Penn Law School Philadelphia, Pennsylvania June 18, 2004 8:30-9:00 Registration and Breakfast 9:00-9:30 Opening Remarks 9:30-10:30 Panel I – Understanding the Threats to Security and to Civil Liberties Daniel Sutherland, Office of Civil Liberties, Department of Homeland Security David Rudovsky, Penn Law Eyal Benvenisti, Tel Aviv University 10:45-12:00 Panel II – Innovations in Immigration Policy and Criminal Procedure Jan Ting, Temple Law School David Cole, Georgetown University Law Center Frank Dunham, Federal Public Defender, Attorney for Yaser Hamdi and Zacarias Moussaoui Marwan Kreidie, Director, Philadelphia Arab American Development Corporation 12:00-1:00 Lunch 1:15-2:30 Panel III – Privacy and the War on Terror Marion "Spike" Bowman, FBI Marc Rotenberg, Electronic Privacy Information Network Peter Swire, Ohio State 2:45-4:00 Panel IV – Implications for First Amendment Rights Colonel Kenneth Lassus, Fort Sam Houston Frederick Schauer, JFK School of Government, Harvard University Seth Kreimer, Penn Law 4:15-5:30 Panel V – Reconfiguring Presidential and Judicial Power Colonel Tom McShane, U.S. Army War College Ruth Wedgwood, Yale Law School John Yoo, Boalt Hall School of Law Kim Lane Scheppele, Penn Law 6:00 Dinner -- Nathaniel Persily Assistant Professor University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104 (o) 215-898-0167 (f) 215-573-2025

Call for Papers: New Journal ethic@
    ethic@: An International Journal for Moral Philosophy Publisher: Núcleo de Ética e Filosofia Política - Federal University of Santa Catarina ethic@ aims at publishing top quality and cutting edge papers (articles, reviews, interviews, etc.) in the field of modern and contemporary moral philosophy. Published twice a year (June and December), the journal will be available without charge on the following address: Later, the journal will also be published in the traditional format or in CD ROM for personal use or research in libraries. ethic@ has no ideological orientation and publishes papers from any tradition or area of philosophical investigation that fulfills the requirements of scientific excellence. The papers may be on meta-ethics, normative or applied ethics. In the latter case, the discussion should be carried out from a philosophical point of view. The journal will publish papers in Portuguese, English, German, French, Italian and Spanish. ISSN: 1677-2954 ethic@ - Revista Internacional de Filosofia da Moral Núcleo de Ética e Filosofia Política - Dep. Filosofia Universidade Federal de Santa Catarina Caixa Postal 476 88010-970 - Florianópolis – SC - Brasil Email: Current Issue: Vol. 2 Num 2 (Dez 2003) Date: 19 April 2004

Thursday, April 29, 2004
Classroom Technology Department The New York Times has a very interesting story discussing interactive classroom technology & Paul Caron of TaxProf Blog. Paul uses a device that permits students to take in-class quizzes. Here's an excerpt from the story:
    Professor Caron of the University of Cincinnati, who uses the clickers in his tax and estate law courses, agreed that the devices could boost attendance. "The reason attendance hovers near 100 percent in my classes is because students know if they miss class they do not get credit for answering the questions correctly that day," he said. In the pre-clicker past, he said, many students were embarrassed to speak out in class, especially if it meant admitting they did not understand something. "They were petrified of looking dumb in the eyes of their classmates," he said. Using the clickers, Professor Caron can keep better track of a student's performance and embrace the Socratic method by engaging all the students in his law class at once, not one at a time. Professor Caron has become something of a hero among his students. "I won the teacher-of-the-year award," he said, "and it had to be the technology, because I'm not that good. I've been teaching 13 years and never won it, then I'm using this thing and I'm Mister Popularity."
And here is the abstract from a forthcoming Journal of Legal Education article by Paul and Rafael Gely:
    Law schools (and indeed all of higher education) have witnessed an explosive growth in the use of technology in the classroom. Many law professors now deploy a wide array of technological bells and whistles, including PowerPoint slides, web-based course platforms, in-class Internet access, and the like. Students, in turn, increasingly come to class armed with laptop computers to harvest the fruits of the classroom experience. Yet in recent years there has been somewhat of a backlash, with various law professors arguing that this technology is interfering with, rather than improving, pedagogy in the classroom. According to the critics, this technology increases student passivity and thus interferes with the active learning that should be the hallmark of a law school classroom. In addition, the critics complain that laptops provide too much competition for the students' attention, enticing them to play computer games or DVDs and, with in-class Internet access, to read and send email (or instant messages), shop on-line, or check out the latest political, financial, or sports news. This Article opens a new chapter in this debate, explaining how law professors can use both old and new technologies to increase student engagement in the classroom. We first lay out the pedagogical case for creating an active learning environment in the law school classroom and then examine the critics' charge that technology impedes these goals. The Article offers a competing vision of how technology can be harnessed to increase active student learning and, in the process, empower students to resist their laptop's siren song. In particular, we describe how in our tax and labor law courses we combine both old (substituting word processing text for PowerPoint slides) and new (using handheld wireless transmitters) technologies to inject more active learning into the classroom.
For more and details on getting an electronic version of the JLE article, check out this TaxProf Blog post.

Thursday Calendar

Legal Theory Jobs Australian National University has an opening in Legal Theory. Here is the announcement.

Muñoz on Madisonian Religious Liberty Vincent Phillip Muñoz (North Carolina State University - Department of Political Science & Public Administration) has posted James Madison's Principle of Religious Liberty (American Political Science Review, Vol. 97, No. 1, pp. 17-32, February 2003) on SSRN. Here is the abstract:
    Although James Madison has been invoked by justices and judicial scholars for over one hundred years, Madison's principle of religious liberty has never been fully grasped or adopted by the Supreme Court. Judges and scholars have failed to understand Madison's radical but simple teaching that religion is not part of the social compact and, therefore, that the state may not take religion within its cognizance. This is most unfortunate because Madison offers a doctrine capable of unifying the Constitution's two religion clauses into one straightforward rule. His principle addresses the legitimate criticisms of conservative and liberal advocates who have argued, respectively, that the Supreme Court has been unnecessarily hostile toward and favorable toward religion. Madison thus speaks to the contemporary disillusionment with the Court's religion jurisprudence. A proper interpretation of his thought offers a timely and timeless understanding of the principle of religious freedom.

Wallace on the Publicity of Reasons R. Jay Wallace has posted The Publicity of Reasons. Here is a bit:
    It has recently been suggested that there can be no such thing as a private reason for action. Normative reasons are by their nature public; their normative force, in other words, extends across different agents. Thus if considerations C provide me with reason to do x, then they equally provide other people with corresponding reasons for action.
    This is an intriguing thesis, which I have come to think is probably both correct and important.

Conference Announcement: Feminist Philosophy in the Analytic Tradition
    Reminder: Registration fees go up on May 15, 2004. Feminist Philosophy in the Analytic Tradition June 4-6, 2004 A conference organized by the Society for Analytic Feminism and the Department of Philosophy at The University of Western Ontario Registration fees: faculty (by May 15) $50, students (by May 15) $25. After May 15 fees go up to $75 and $50. Registration forms are on the web at Rooms have been set aside for conference participants at Essex Hall, a dorm on campus, $44 a night incl. breakfast, and at the Station Park Hotel, in downtown London, conference rate of $119 a night, (1-800-561-4574). Please make your own reservations well in advance of the conference. Graduate students requiring billeting can e-mail conference organizers for assistance, PROGRAM Friday, June 4 Registration noon until 2 pm in the Philosophy Common Room, Room 313, Talbot College (TC). 2 pm TC 340 Christine Freeman Roth University of Waterloo "Anticipating Feminist Objections to a Moral Contract" TC 310 Alex Barber The Open University "From folk explanations to structural explanations: a critical reconstruction" TC 305 Ingra Schellenberg University of North Carolina at Chapel Hill "The Feminine Face of Sadness" 3 pm TC 341 Louise Antony & Rebecca Hanrahan The Ohio State University & Whitman College "Toward a Feminist Theory of Authority" Coffee & snacks/registration TC 313 4:30 pm TC 340 Jean Harvey The University of Guelph "Gratitude: What's the Story?" TC 310 Sara Ferguson Cornell University "Racism, white privilege, and 'the best of intentions'." TC 305 Sherisse Webb Wilfrid Laurier University "A Feminist Critique of Feminist Contractarianism" 5:30 pm TC 341 Claudia Card University of Wisconsin-Madison "Torture in Ordinary Circumstances". Barbecue/potluck dinner at 141 Duchess Avenue, London, Ontario. We'll provide veggie burgers, locals can bring a salad or a dessert, out of town visitors can either just bring themselves or themselves plus something to drink. Saturday, June 5 8-9 am Registration and coffee/juice in TC 313, Philosophy Common Room 9 am TC 341 Diana Tietjens Meyers University of Connecticut "Who Acts? Reflections on Identity, Selfhood, and Autonomous Agents" 10 am TC 340 Macalester Bell University of North Carolina at Chapel Hill "Contempt as a Response to Sexist Oppression and Oppressors" TC 310 Peg O'Connor Gustavus Adolphus College "Feminist Wittgensteinian Meta-ethics? Revising the Big Book" TC 305 Rebecca Whisnant University of Dayton "Against Unifying Love" 11 am TC 341 Marilyn Friedman Washington University at St. Louis "Women and the Claims of Culture" LUNCH AT GRAD CLUB 1:30 pm TC 341 Susan Babbitt Queen's University "Reasons, Explanation, and Meaningful Choice" 2:30 pm TC 340 Sylvia Burrow Mary Immaculate College, University of Limerick "The Political Structure of Emotion" TC 310 Roksana Alavi University of Kansas "Female Genital Mutilation and Cosmetic Surgery" TC 305 Carol Hay The Ohio State University "On Sexual Harassment: Women's Obligations to Resist Oppression" COFFEE 4:00pm TC 341 Ann Cudd University of Kansas "Missionary Positions" 5:00 pm TC 341 Lynn Hankinson-Nelson, University of Washington "Impure Thoughts: Reflections on The Contamination Thesis" BANQUET AT MICHAEL'S Sunday, June 6 10 am TC 341 Sally Haslanger MIT "What Are We Talking About? The Semantics and Politics of 'Race' and 'Gender'" 11 am TC 341 Robin Dillon Lehigh University "A Feminist View of Arrogance" 12 pm TC 341 Julia Driver Dartmouth College "Trust and Feminist Ethics" LUNCH 2:30 TC 340 Cate Hundleby The University of Windsor "The Value of Oppositional Secrecy" TC310 Anita Superson University of Kentucky "Deformed Desires and Informed Desire Tests" TC 305 Tamela Ice University of Kansas "Simone de Beauvoir's Challenge to Cultural Feminism and Post-Structuralism" 3:30 T1 341 Ann Levey University of Calgary "Liberalism, Adaptive Preferences, and Sexual Equality"

Call for Papers: BSET 2005
    CALL FOR PAPERS The BRITISH SOCIETY for ETHICAL THEORY 2005 CONFERENCE University of Leeds, UK 11-13 July 2005 Invited Speakers: John Skorupski (University of St.Andrews) TBA Papers are invited for the annual conference of the British Society for Ethical Theory, to be held at the University of Leeds. The subject area is open within metaethics and normative ethics. Papers on topics in applied ethics or the history of ethics may also be considered provided they are also of wider theoretical interest. Papers, which should be unpublished at the time of submission, should be in English, no longer than 6500 words, readable in at most 45 minutes and in a form suitable for blind review. Please send an abstract and two copies of the paper, and supply your full name, address (electronic as well as postal if possible) and academic affiliation on a separate sheet. Those who submitted papers for our previous conferences - successfully or otherwise - are welcome to submit again (though not of course the same papers!). Please tell us if you are a postgraduate student: submissions from postgraduates are encouraged as our aim is that some such should be represented at the conference. Selected conference papers will be published in the journal "Ethical Theory and Moral Practice". Please make clear in any covering letter whether you want your paper considered for publication here as well as for the conference programme. The deadline for submissions is 10th December, 2004. Papers should be received by this date - i.e. it is NOT a postmark deadline. Papers and accompanying particulars should be sent to: Dr. Nafsika Athanassoulis, School of Philosophy, M. Sadler Building, University of Leeds, Leeds LS2 9JT or e-mailed to: Further particulars regarding registration will be available in due course from Dr. Nafsika Athanassoulis (see above), to whom any inquiries should be addressed. BSET homepage:

Call for Papers: Race, Ethnicity, Racism
    Call for Papers "Race, Ethnicity, Racism" Inaugural Annual Conference California Roundtable for the Philosophy of Race University of San Francisco (USA) 24.-25.9.2004 The California Roundtable for the Philosophy of Race announces its inaugural annual conference, to be held September 24-25, 2004, at the University of San Francisco. The purpose of the roundtable is to bring together philosophers of race, and those working in related fields, in California, and throughout the nation, in a small and congenial setting to share their work and to help further this sub-discipline. Keynote Speakers: 9/24: Tommy Lott (San Jose State University) 9/25: Gregory Velazco y Trianosky (CSUN, Northridge) Papers are invited on any philosophical issue regarding race, ethnicity, or racism, and including those that take up race in the context of another topic, such as justice, racism, identity, ethnicity, mestizaje (mixed race), feminism, biology, phenomenology, existentialism, psychoanalysis, metaphysics, or epistemology. Registration is free but please register by email by June 1, 2004. Papers should be no more than 30 minutes in length. Please email your paper as a pdf document, together with an abstract of no more than 150 words, to Or send two copies of your paper and abstract to: Ronald Sundstrom, Philosophy Department, USF, 2130 Fulton St., San Francisco, CA 94117-1080 Submission Deadline is June 1, 2004. The California Roundtable for the Philosophy of Race is sponsored by the USF and CSUN philosophy departments.

Conference Announcement: Public Trust and Private Interest

Wednesday, April 28, 2004
Blogging from Oxford 2: Danny Priel at the Jurisprudence Discussion Group
    Introduction The central question of jurisprudence since Bentham has been whether legal positivism offers the best account of the nature of law. One side of that debate is the dispute between natural lawyers and legal positivists, but in the twentieth century, the main action was mostly within legal positivism, and Hans Kelsen and H.L.A. Hart setting the terms of the debate, with Joseph Raz playing an important role in refining and articulating the case for a strong version of legal positivism. The most recent manifestation of the debate within legal positivism has been the debate between exclusive (hard) and inclusive (soft) legal positivists, with contributions from Raz, Jules Coleman, Brian Leiter, Scott Shaprio, Andrei Marmour, W.J. Waluchow, Matthew H. Kramer, Kenneth Einar Himma, and others. Inclusivists believe that law can but need not incorporate moral norms, whereas exclusivists contend that law cannot incorporate moral norms. (If the lines are drawn in this way, then one might define natural lawyers as those who argue that law must incorporate moral norms.)
    As I am composing this post, I’m in Oxford at the Danson room in Trinity College. It is 8:00 p.m. on Tuesday, rather late for an event to begin in my opinion! Our speaker is Danny Priel (D.Phil. Candidate Oxford) and his topic is Farewell to the Exclusive-Inclusve Debate. The JDG papers are usually posted online and Priel’s paper is quite interesting: you can download it here. Indeed, Priel’s paper was so provocative, that I seem to have developed a renewed interest in the debate between inclusive and exclusive legal positivists—a result that Priel may consider perverse.
    Inclusive and Exclusive Legal Positivism Priel begins with some introductory remarks, noting the fact that even in Oxford, the debate between inclusive and exclusive legal positivism is considered to be “boring.” He then gets down to the paper. His paper begins with an elegant and concise summary of the principle positions in the inclusive-exclusive debate:
      [O]n one side stand the inclusive (or soft) positivists who argue that there is no conceptual limit to the law’s “incorporation” of moral standards into specific legal standards or into the rule of recognition. On the other hand, exclusive (or hard) positivists believe that such a conceptual barrier exists.
    The term conceptual is important. The inclusive-exclusive debate is fought out based on the assumption that what is at stake is the concept of law. Those who believe that the debate between and among various versions of natural law and legal positivism is a normative dispute belong to an entirely different line of development in contemporary legal philosophy.
    Raz’s Argument for Exclusive Legal Positivism Priel provides a very nice summary of Raz’s argument, which is worth quoting:
      (1) Law either is an authority or is (wrongly) taken by those subject to it as an authority. (2) For something to be an authority or be considered an authority it must claim authority. (3) Anything that claims authority must purport to replace the reasons for action those subject to the authority have with other reasons. Thus authoritative reasons are reasons not to act on certain reasons (i.e., they are exclusionary reasons) coupled with new reasons for action. (4) Since law claims authority it must purport to provide exclusionary reasons (from (2) and (3)). (5) When law incorporates morality, the law does not provide exclusionary reasons for action, because it does not replace the first-order moral reasons that apply to an agent, only tells the agent to act on the first-order reasons the agent should act on anyway. (6) Therefore when law incorporates morality, law does not (in those instances) claim authority (from (3) and (5)). (7) But (6) contradicts (4). (8) Since (4) (and (1)-(3) from which it derives) are conceptual truths about law they cannot be dropped. So to resolve the contradiction we drop (5). From which we conclude: (9) It is never the case that law incorporates morality (from (8)).
    And why should one heed the law’s authority? Or put differently, why should one treat the law’s reasons for action as exclusionary? Priel summarizes Raz’s answer to that question as follows:
      [A] person[’s] ha[ving] [justified] authority over another involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.
    Exclusivism holds that in order for law to claim authority, it must provide reasons that preempt first-order reasons for actions, including moral reasons.
    The Case for Inclusivism Priel also provides a less crystalline but nonetheless nifty summary of the case for inclusivism, identifying three lines of argument. What follows is a truncated version:
    • [First,] [s]ome commentators rejected Raz’s account of authority in general, for instance by rejecting his thesis about exclusionary reasons, which is a fundamental plank for his explanation of authority. . . . [I]t is a mistake to think of legal norms as exclusionary reasons, instead they are better understood as very strong (yet defeasible) reasons.
    • A second option is to argue that even if Raz’s account of authority is perhaps correct of some institutions, it is mistaken as an explanation of the authority of law. [Matthew Kramer argues that] a legal system claims authority, but that contrary to Raz’s view (or the view [Kramer] ascribes to [Raz]) it need not claim moral authority.
    • A third approach accepts Raz’s account of authority, accepts also its relevance to the understanding of law, but denies that ELP follows from it. . . . [Jules Coleman argues that] Raz’s argument for ELP imposes an epistemic constraint requiring that we be able to know that a certain norm is a legal norm without recourse to morality. But the argument for ELP does not impose a metaphysical constraint on what a legal norm is. Therefore, Raz’s theory of authority is not a problem for ILP so long as it is possible (and Coleman thinks it is possible) to have a legal system in which everyone can know the law without recourse to the moral considerations while at the same time moral standards are incorporated into the law.
    And that concludes the setup. On to the meat of the paper.
    Priel’s Argument Priel’s claim is that the debate between inclusivists and exclusivists is based on a false assumption:
      I think both sides to the debate share one false assumption, and therefore their views, whatever their merit otherwise is, are wrong about the question of the possibility of incorporation of morality into the law. The false assumption is the belief that when laws contain words like “justice,” “equality,” “fairness” etc. (I will call these words henceforth “moral words”), these words refer to the moral concepts JUSTICE, EQUALITY, FAIRNESS etc.
    Priel then shows that participants in the inclusive-exclusive debate (particularly Raz) hold this assumption. And what is the correct assumption:
      [M]y view is that in all (or almost all) instances in which moral words are mentioned in the law, the reference is to a legal concept, which normally bears a close relationship to the moral concept (or more accurately, to the moral concept as understood at the time of interpretation) but is logically independent of it.
    Priel then makes a move the significance of which is not entirely clear to me. Here’s the passage that I find puzzling:
      I think there are good reasons for thinking that the view that we [can] discover or know the “best” or “correct” morality is mistaken. Even if there is such correct morality (and I doubt that), the possibility of us ever getting to know that correct morality seems to me unlikely. My argument will begin on the more modest assumption that seems to me well supported by the history of ethical thought, both popular and professional, that currently we do not know what the correct morality is, even if such morality actually exists.
    Why am I puzzled? First, I’m not quite sure what Priel means when he says that he doubts there is a correct morality. Is he relativist? A moral skeptic? Second, I find his assertion that “we do not know what the correct morality is.” Surely, we are quite confident about the truth of many moral propositions. Perhaps, Priel means that we don’t know what the best theory of morality will ultimately turn out to be. Suppose that is the case, and further suppose that as a result some difficult moral cases hinge on disputed issues about which moral theory is the correct or best theory. Nonetheless, it could still be the case that some moral cases are easy, and that for those cases, we do know what morality requires. For example, we may not know whether the death penalty is cruel, but nonetheless be quite certain that thumbscrews are cruel.
    Here is a slightly different version of my worry. Priel claims we don’t know what the “correct morality” is, but this claim is most plausible as applied to thin moral concepts (e.g. “right,” “good,” and “just,” but dubious in the context of thick moral concepts, such as “cruel” or “kind.” When it comes to thin moral concepts such as “justice,” there is a good deal of disagreement both among theorists and ordinary folk. But with respect to thick moral concepts, there is substantial more agreement, and especially strong agreement on the core or paradigm cases. Thus, we know that torture is cruel. Moreover, there are relatively fixed criteria for the application of many of the thick moral concepts. For an action to be cruel, it must inflict needless suffering. Of course, there may be borderline cases of cruelty, but many nonmoral concepts have borderline cases.

    An Example: The Death Penalty in 1850 Priel then provides an example. Suppose we were to discover that the best theory of morality holds that the death penalty is “cruel and unusual punishment.” Nonetheless, Priel maintains, we are likely to believe that a judge who upheld the death penalty in 1850 made a decision that is legally correct. And of course, if a trial judge were to have done otherwise in 1850, he would undoubtedly have been reversed on appeal.
    What is Priel’s positive account of such more terms like “cruel”:
      So what do words like “equality” or “fairness” refer to when they are mentioned in the law? I believe my argument above shows that it is more accurate to think that in such cases the law refers to what I called legal concepts, and judges are required to decide cases according to these concepts’ legal meaning. What are these legal concepts? It is very likely that the correct moral concepts are related to the legal concepts denoted by the same word, but it is important to see that even if some correct morality exists, unless we know what that correct morality is, it is not the correct morality that influenced the content of moral words but rather the common understandings of moral words in different societies. Since these change over time, if there is a correct morality that never changes, we can be sure that social understanding of morality often differs from the correct morality.
    At this point, Priel seems to suggest that the meaning of apparently moral concepts like “cruel and unusual” or “equality” is fixed by the moral norms of a particular community, but Priel then denies that this is so:
      There is also a strong link between commonly held meanings given to moral words in a certain society and the legal meaning given to those words: judges after all are part of society, and their training and selection procedures usually guarantee that those who are elected for the judiciary do not hold views that are grossly at odds with those of much of their society. However, it would also be a mistake to think that the meaning of moral words is identical to the social understandings of moral concepts. There are many historical examples of cases in which the majority of people in a certain state thought the judiciary is mistaken in its understanding of certain moral words, which are part of that state’s laws. To some extent legal discourse is conducted independently of other political discourses: when a lawyer is asked what constitutes “cruel and unusual punishment” in American law, she would turn for the answer to a law book; the meaning of those words in the law will often have a some peculiarities true only of the law.
    What Priel says is correct, but it worries me just a bit. The question is not just whether courts sometimes depart from the moral norms of the community, but whether this deviation would be viewed as a mistake or not. What Priel needs to make out his argument is the claim that there are historical examples of cases in which the majority of people in a certain state thought the judiciary was mistake in its understanding of certain moral words that were part of the state’s law, but nonetheless the judiciary was legally correct in holding the deviant understanding.
    Objections I won’t summarize the remainder of Priel’s paper, which dealt with a variety of potential objections to his position, including, for example, the possibility that moral norms might be included in the rule of recognition. In the question and answer period, I asked Priel about the two worries expressed above. What, for example, would Priel say about a variant on his 1850 death penalty case. Suppose that it is 1850 and a court of last resort decides a case involving a very unpopular criminal defendant who is sentenced to a punishment that would fall under the thick moral concept of cruel, for example, torture. The court is swayed by the pervasive anger at the defendant and upholds the sentence. Critics of the decision might say, “That decision was legally incorrect. The Constitution forbids actions that are properly classified as coming under the thick moral description “cruel. Torture is cruel. So this decision was wrong.”
    Replying to the question, Priel first noted that he could accept the point that trial judges are bound by precedent and simply alter his example so that it involved a court of last resort. This move is entirely fair, I think. He then noted that that the distinction between thick and thin moral concepts posed a more serious challenge to his position. Priel noted that his position assumes moral realism—a view that Priel believes is held in common by the participants in the inclusive-exclusive debate. [I believe that I’ve gotten this right, but I am not quite sure how wide in scope Priel’s attribution was meant to be.] Given moral realism, it can, in principle, turn out that everyone is wrong about a moral question, e.g. the question whether a given punishment is cruel But positivists, Priel argues, are committed to the view that in some important sense, when the whole legal culture believes that a punishment is not cruel, then it is not legally cruel.
    But one needs to be very precise here. No one needs to dispute the claim that when a court of last resort decides a case and that decision becomes final, then the decision is legally binding. And that has consequences. For example, the decision will bind the parties to the dispute and the precedent that is set will bind lower courts in a common law system. But none of that is inconsistent with the assertion that the decision made by the court of last resort was nonetheless mistaken as a matter of law. And if the basis for the mistake was that the court misapplied the thick moral concept of cruelty, then it would seem that the decision was incorrect because the court misapplied a moral standard.
    Of course, this argument may fail for the reasons Raz identifies, but Priel may not avail himself of this move, since it is his claim that Raz is mistaken to believe that terms like cruel are truly moral terms. Priel needs to argue that “cruel” as used in a constitutional provision that forbids “cruel punishments” is not a moral concept at all, but is instead a legal concept, for which the criteria that determine correct application are internal to the law and fixed by the conventions of legal practice. Priel's view would seem to lead to the conclusion that the legal meaning of cruel changes in the case where (1) the legal culture says that torture is not cruel in 1850, but (2) then says that this decision was mistaken. This would seem to lead Priel to the awkward conclusion that the later assertion that the 1850 decision was a mistake is itself “mistaken." Despite the legal communities attribution of legal mistake, there was not true mistake at all. Instead, the 1850 decision was correct, but the law changed. The change-in-law interpretation, it strikes me, misses the force of the claim that a court of last resort has made a legal mistake.
    There was also an interesting discussion of the question whether Priel’s argument generalizes to nonmoral concepts such as causation. If the entire legal culture believes at time T1 that X does not cause Y, but we later (time T2) discover that this belief was based on a scientific error, are we tempted to say that as used by courts, “cause-in-fact” is a legal concept and not a scientific concept and that the legal concept of cause changed between T1 and T2? Priel seemed willing to bite this bullet—arguing that the legal concept of cause may indeed be different than the scientific concept. Well, Priel is right about that, the concepts may be different, but that does not entail the conclusion that there was no legal mistake at time T1.
    Many more interesting questions were asked and answered, and I certainly learned from Priel’s paper and the very good discussion that followed.

Blogging from Oxford, Part One: Foot on Morality and Goodness
    Introduction As I was beginning to compose this post, it was 4:30 p.m. GMT on Monday. I was sitting in the fourth row of Examination Room 6 at the University of Oxford. Reverting to the present tense (in which I originally composed), the speaker is Philippa Foot and her topic is "Goodness and Happiness." Foot is at the front of the room, and she looks very well indeed. The most noticeable difference from the image I remember from 20 years ago is a walking stick. The room is full and buzzing with serious talk (and some not so serious talk as well).
    I've been walking all day, and I only got an hour or two of sleep on the red eye from Los Angeles, but I find that I am not the least bit tired. Foot was my teacher twenty some odd years ago, and she is one of my intellectual heroes. So, I am looking forward to this with great anticipation and much fondness.
    Robert M. Adams has just come into the room, another former teacher of mine from UCLA, and a long-time colleague of Foot's. We both remark how glad we are to have made this event.
    Foot Begins After a short introduction, Foot says she doesn't know where to begin. She says she will say a little about where she is coming from. There has been a notorious battle, with R.M. Hare about the boo-hooray theory, which has received a brilliant restatement by Gibbard. Foot rejected the move to the sharp distinction between descriptive and evaluative propositions. She remembers when she rejected Hare's view. It was in a conversation with Elizabeth Anscombe in which she replied to an example that it was a mixture of description and evaluation. "What?," said Anscombe. That was the beginning of Foot's project. It is entirely wrong to contrast fact and value. In Natural Goodness, she tried to give an account of evaluation as a special kind of fact. She was helped in this by an article by Michael Thompson. It is a view that connects good with life in such a way that if there had been nothing alive, good would have had no application. Foot thinks that although good can be used in so many different ways--good roots of tries, good actions, good weather, and so forth--there would be no good without life. In a lifeless universe, there would be no good or bad of any kind.
    That's where I'm coming from, says Foot. Foot parenthetically notes that she is known for changing her views, but that she doesn't think the lecture she gives today involve any changes.
    The Paper So now, Foot begins her actual paper. Today's problem is the problem of the letter writer (introduced momentarily) who is in a tight corner. This problem comes from a marvelous book called "Dying We Live." It is a book of letters written home by anti-Nazis who were condemned to death. They were allowed to write letters home. They are very touching, some long, some short. She quotes a letter from a farm boy from the Sudetenland. He wrote, "Dear Parents, I must give you bad news. I am condemned to death. We would not sign up for the SS. Both of us would rather die than become a member of the SS. I know what they do." This letter writer is in a tight corner.
    Was this a rational choice? On what theory of practical rationality can the rationality of this choice be made out? How can it be rational to do what is totally inimical to one's own good? (Of course, it might not be a tight corner, because the remorse might be so bad that it would be worse to go on living. But one can get rid of this argument, by imagining an amnesia drug. Amnesia, says Foot, is a real phenomenon. There is no amnesia drug now, but I infer that the point of Foot saying that amnesia is a real phemenon is to insist on the legitimacy of her amnesia-drug countermove to the remorse argument.).
    So we have now returned to the main question. Foot now asks whether virtue ethics could help with the problem of the tight corner. Foot notes that she herself is not a virtue ethicist, unlike Rosalind Hursthouse, Michael Slote, and Christine Swanton. She is opposed to virtue ethics, which is now all the rage in moral philosophy. Why?
    Foot's Rejection of Virtue Ethics The idea of virtue ethics seems to be that the primary moral judgments are inner states and actions derive their moral status from these. Of course, when an action is judged morally, intentions must be judged. Foot gives the example of a medal for courage given to a Scotsman who fell off a pier while drunk and as a result saved a drowning man. This medal was wrongly given, she observes. But virtue ethics goes much further than this, as when Christine Swanton says that moral goodness is a matter of fine moral states. Foot briefly argues that this view problematic, noting that when Swanton tries to specify the innter state for justice, Swanton specifies the inner state as "sensitivity to the genuine demands of justice." (My paraphrase of Foot's paraphrase--not a quote from Swanton.) Foot left it there, but I assume she thought the audience would conclude that Swanton's specification of the inner state was circular. Foot then notes that justice is the difficult virtue for virtue ethics to handle. And surely Foot is right about that!
    Inner states (or what the agent feels), says Foot, are often irrelevant. For example, schadenfreude (joy at others pain) is not always entirely bad. Rather than inner states, Foot claims, it generally is the nature of actions that determine what should and should not be done. So, when Anscombe talked about the morality of promises, she didn't talk about inner states but rather discussed the importance of one person binding herself to another. Another example is theft: the wrongfulness of theft is about depriving others of what they need and not about an inner state.
    One reason why Foot says she dislikes virtue ethics is that it seems to forget how much we rely on law, order, and decent behavior. This is one way in which virtue ethics skews our thought. The danger of taking virtues as primary is that it suggests a (false) solution to the problem of the tight corner. It is tempting to think that virtues, being dispositions, manifest one's values and hence can explain why one acts contrary to self interest. It is tempting to suppose that the reference to values solves the problem of acting virtuously in the tight corner.
    Is the point of a virtue that the disposition to act well is something that is present, even in the tight corner? The point being that this would explain why one could act rationally by acting on the basis for the reason provided by the virtue. Foot then asks a question, which undermines this account of the virtue-ethical solution to the tight corner. Her question is: "Wouldn't it be rational to at least try to act contrary to the virtue?" Virtue ethics doesn't have a real solution to the problem of the tight corner. Foot was moving rather quickly here, and I may have missed an element of her argument.
    Are we in trouble? Once again, Foot moves back to the main question. Are we in trouble? That is, do tight corner cases pose a difficulty for our understanding of the relationship between rationality and morality. Foot says that her present thought is that we aren’t in trouble. That is, Foot is claiming that there is no problem to be solved. As Foot puts it, she now thinks that it is not right to think that there is a problem about goodness and happiness. So today's paper, Foot says, is about why we aren't in trouble. The tight corner, where happiness and morality seem to conflict is not truly a problem.
    Warren Quinn and the Priority of Morality and Rationality How did Foot arrive at her new position on this issue? Foot says that her thinking was helped by the work of Warren Quinn. Although I never had a course from Quinn, I spent a good deal of time in his office and I was a witness to his brilliant participation in one of Foot's graduate seminars. Coincidentally, the seminar (held about 15 years ago as I recall was also on the problem of rationality and morality.
    Rationality and Morality Now, Foot summarizes an argument of Quinn's (from Rationality and the Human Good and Putting Rationality in its Place. The structure of Quinn's argument is idiosyncratic. Most philosophers start with a theory of rationality and then move to morality--the idea is that morality must answer to rationality. As I understand Foot, she is making a point about the relative priority of rationality and morality. But Quinn suggests that we should count a theory of rationality as deficient if it would endorse a shameful action. In other words, Quinn is arguing that rationality must answer to morality. That is, Quinn claimed that morality has priority over rationality. Foot notes that Quinn's argument was directed at neo-Humean theories, such as (1) the theory that rationality aims at maximizing desire satisfaction and (2) the theory that rationality aims at the agent's well-being. On either theory, it would be possible for morally disgraceful actions to be recommended as rational. Foot paraphrasing Quinn then asks, “Why, if this were true, would we think rationality is so important?” Or as I might put it a bit differently, “How could rationality have priority if it could lead to the recommendations of disgraceful action?” That is, Foot says, the command does not go from rationality to morality; it goes the other way, from morality to rationality.
    Natural Goodness Foot then moves on to a new stage in her argument. She makes a point about method. Some might suggest that we could start with indubitable facts about actions that are good or bad. That is, our initial premise could be that we know that such and such is wrong. To this proposed way of proceeding, Foot says “No.” We do not need to begin with what I might call bare intuitions about what is good and bad. Why not? Foot explains that in her recent book Natural Goodness, she argued for criteria for goodness and badness. Foot starts with facts about human life, and proceeds to derive the criteria from these facts. As I interpret her, Foot is claiming that her account of natural goodness does not rest, at bottom, on our bare intuitions about clear cases of good and bad.
    If this is roughly right, Foot then asks, “How do things stand between happiness and goodness”? A person's goodness and their good can come apart (as in the tight corner cases). Earlier in her career, Foot tried to give a special conception of happiness to handle this problem, but she abandoned this solution.
    In this paper, Foot is offering an alternative account of the relationship of good and goodness. To illustrate her approach, she suggests that we think about plants and animals. In animals, good and goodness are not closely connected. The good animal (e.g. healthy and strong animal) can act in ways that are not for its own good. Healthy bees sting and die young. Acting the way a bee should act can be bad for the individual bee. Birds that defend their nest sometimes decoy a predator from the nest and are killed. Is it the same with human beings? Foot says, she thinks that it is.
    Happiness as One Virtue Among Many It may seem shocking that the good human would be harmed because of her goodness. But, says Foot, this is not a true problem. Human beings are like those bees. Being a good human does not guarantee that one acts for one's own good. Why then did Foot see the tight corner as a problem? Foot mistakenly believed that one's own good was part of the structure of rationality’as part of the foundation. But now, Foot says, we should look for one's good in the building. One's good is the aim of one of many virtues. Foot now introduces a bit of terminology. "V sub h" is the virtue of one's own happiness. "V sub o" is the virtue of other's happiness.
    Foot then elaborates a bit on “V sub o.” Consider the case where we wish for our children's good. What does this mean? Foot gives the example of a contest with prizes. You will wish your children should earn the prize--there is nothing wrong with having this hope. But one would not wish for one's children to experience the joys of torturing others. Nor would one wish that one's children would experience the pleasures of a perpetual childhood. Insofar as happiness is identified with human good, the idea of it cannot be derived in any simple way from the idea of pleasures.
    A Virtue Directed at Happiness Foot now returns to the idea of “V sub h,” comparing it to other virtues, as in “V sub c” = charity and “V sub j” = justice. Someone who has “V sub h” acts for his own happiness. Foot says this virtue has no name. Elaborating a bit more, she says that “V sub h” is a virtue placed among other virtues. Each virtue's content is defined in part by its relationship to the other virtues. That is, the scope of one virtue determines the scope of the others. One cannot do charity by giving away the money one owes to another. An act of V sub h cannot be an unjust act, because the scope of V sub h is determined in part by justice.
    And on that point, Foot ends her paper, followed by sustained applause.
    A Query About V sub h Foot is extraordinarily careful, so it is always wise to take some time to digest her ideas. I did have a thought or two about what I take to be the new and important idea in the pape “V sub h,” the virtue that is directed at happiness. Initially, I think it is quite interesting to suppose that there is a virtue concept that would seem to play a quite central role in human life, for which there is no name. Our language is rich with vice and virtue words, and it seems rather odd that a central virtue would be missing from our vocabulary.
    This initial thought lead to another. Foot's picture is that V sub h is one virtue among many. That it is one room in the house--to use Foot's metaphor. This picture of the relationship between virtue and happiness is quite different from Aristotle's picture--at least as I understand Aristotle’s view. The Aristotelian picture is that happiness is constituted by a life of faring well and doing well, which means a life lived in reasonably favorable circumstance in which one engages in action that is in accord with the virtues. To return to the metaphor of the house, a happy life would be a life lived in a house with rooms for all the virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest). Happiness, for Aristotle, was not just one room in the house.
    I asked Foot a question designed to get at the difference between her picture and Aristotle’s. “If one had all the other virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest) but lacked V sub h, what would be missing?”
    Foot’s answer began with her astonishment at the question: ?I?m surprised you asked that,? she said with the emphasis on that. At this point, I reverted to my undergraduate self, and thought for a moment, “Why did you ask that question, Solum?” Foot then noted that without happiness, a life would be empty. Consider, for example, a life lived in pursuit of celebrity, Foot suggested. This would be a dreadful life.
    I am sure that I am missing something important, because Foot’s answer did not seem fully responsive to my question. Someone who pursues celebrity, who puts external recognition far too high in the hierarchy of values would not, I think, be a person who does possess the full complement of the virtues. Caring too much for recognition by others is a vice that is distinct from not caring about one’s own happiness. Moreover, a person of practical wisdom would recognize that celebrity would be unsatifying as an end for one’s action--that it would not be a fruitful goal to pursue. Indeed, happiness can be thwarted by any of the particular vices, intemperance, bad temper, cowardice, and the rest.
    What my question was designed to elicit was some account of V sub h, that is, some account of what is distinctive about this virtue. I was trying to get Foot to say more about the content of “V sub h”.
    Foot did address this concern, by referring to the concept of “deep happiness.” Foot did not elaborate on what “deep happiness” is, but given what she did say, it would seem that deep happiness is related to the pursuit of projects that are truly worthwhile or significant. And of course, deep happiness does seem to require that one have a meaningful life plan that involves significant and worthwhile goals.
    There were many good questions, including one from Robert Adams. Finally, the time was up and the session ended. I was very happy to have had the opportunity to hear Foot once again! Philippa Foot remains a marvel to behold and I count myself as lucky to have learned so much from her.

Lund & McGinnis on Lawrence v. Texas I have updated this post to correct a misinterpretation on my part of Lund & McGinnis, and also to suggest that their characterization of Barnett's position (as clarified) is incorrect. Anyone interested in constitutional theory should read this paper! And don't miss Randy Barnett's post on Lund & McGinnis.
    Nelson Lund & John McGinnis have posted Lawrence v. Texas and Judicial Hubris on SSRN. Here is the abstract:
      Lawrence v. Texas produces a desirable policy result, but it deserves condemnation as a legal decision. It repudiates the Supreme Court's most recent attempt to put doctrinal restraints on the most anticonstitutional doctrine in constitutional law - substantive due process. That doctrine, for which the Court has never provided a successful textual justification, has been selectively employed over the decades to advance a variety of political agendas popular with Supreme Court majorities. In 1938, Carolene Products put meaningful restraints on substantive due process, taming that doctrine for about a quarter of a century.. With Griswold and Roe v. Wade, the Court adopted a new substantive due process agenda - sexual freedom. In Washington v. Glucksberg, the Court sought to restore most of the limits of the Carolene Products approach, while leaving the Griswold-Roe line in place, by adopting a test requiring that newly recognized rights be deeply rooted in the nation's history and tradition. Lawrence repudiates the Glucksberg approach and instead deploys an undisciplined form of judicial mysticism. Notwithstanding the availability of plausible arguments based on precedent to invalidate the Texas law, the Lawrence Court chose instead to rely on a series of utterly untenable arguments and analytically empty bombast. We argue that the Lawrence approach is not law in any meaningful sense of the term, but only a vehicle for judges to impose their own political preferences on the nation. We also rebut some justifications that could be offered in defense of Lawrence. We show that Professor Robert Post's concept of a conversation between the Court and the nation obliterates the concept of law as something distinct from politics, and offers a theory of judicial review that would justify even a decision like Plessy v. Ferguson. Second, we show that Professor Randy Barnett fails in his effort to provide Lawrence with a foundation in the Constitution because he misinterprets the Ninth Amendment. Third, we rebut those who would defend Lawrence on pragmatic grounds by explaining why we think competitive federalism is a far superior mechanism for creating new norms of liberty, and for correcting the mistakes that are inevitable in any process of policy development. Finally, we outline the case for repudiating the Griswold-Roe-Lawrence line of cases and for using the Glucksberg test to return the Court's substantive due process jurisprudence roughly to where it stood as a result of Carolene Products.
    And here is the key passage from their reply to Randy Barnett's defense of Lawrence:
      The Ninth Amendment by its terms is a rule of construction rather than a substantive guarantee of rights.130 It simply warns against misinterpreting the Constitution to mean that the enumeration of certain rights might authorize the federal government to infringe other rights. It is thus a reminder that the people retain all their rights against the federal government—including the right to govern themselves as they see fit within their own states—except to the extent that the federal government is authorized to infringe those rights in the exercise of its enumerated powers. We think that the meaning of the Ninth Amendment is perfectly plain on its face, but our understanding of its meaning has now been confirmed with overwhelming historical evidence by Professor Kurt Lash.
    For the Lash paper, surf here.
    I have only begun to think about this issue, but based on a cursory reading, McGinnis & Lund have an incomplete reply to the key element in Barnett's defense of Lawrence as articulated in his book, Restoring the Lost Constitution. Barnett does not claim that the Ninth Amendment creates rights against the states of its own force. As Lund & McGinnis recognize, Barnett's argument rests on the Privileges and Immunities Clause of the 14th Amnendment. Here is the "money" passage from Barnett's paper, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas:
      In addition, federal power is further constrained by the rights retained by the people—both those few that are enumerated and, as affirmed in the Ninth Amendment, those liberty rights that are unenumerated as well. At the state level, the Privileges or Immunities Clause of the Fourteenth Amendment prohibits states such as Texas from infringing the privileges or immunities of its U.S. citizens. These include both the liberty rights or “immunities” retained by the people, and the positive rights or “privileges” created by Constitution of the United States.
    As is clear from both the quoted passage from Barnett's paper on Lawrence and from his book Restoring the Lost Constituion, Barnett claims that state power is limited in two ways. First, Barnett argues that state police power has internal limits--these limits, however, are not federal in nature. Second, Barnett claims that the original meaning of the privileges and immunities clause of the fourteenth amendment constitutionalizes limits on state power. Those are the limits that Barnett relies on in his article on Lawrence. So far as I can tell, Barnett's defense in depth of these positions is not addressed by McGinnis & Lund.
    In a footnote (footnote 129 on pages 43-44 of their paper), McGinnis and Lund contend that Barnett's position is that "the Ninth Amendment applies to state as well as federal laws." They contend that Barnett's position is that the Ninth Amendment is "incorporated" in the Privileges and Immunities clause. I am quite sure that this is not Barnett's position, but perhaps Barnett himself is in a better position to provide the textual evidence. It would be very odd indeed for the Ninth (which of its own force is a rule construction) to be incorporated as an "immunity" in the 14th. What would be much more plausible is that the conception of liberty and legitimate state power that is reflected in the Ninth Amendment is also reflected in the 14th. Let me emphasize that all of this is being done on the fly. A scholarly assessment of Barnett verus Lund & McGinnis would require much more work than I've done for the purposes of this post.
    McGinnis & Lund offer another argument, aimed at Barnett's distinction between liberty (outside the scope of the police power) and license (which may property be prohibited by government):
      The distinction between liberty and license is wholly dependent on an unstated conception of what “the rights of others” are and what it means to infringe them. A list of the “rights of others” certainly cannot be found anywhere in the Constitution, and they are by no means self-evident. Political philosophers have engaged for centuries in sharp and unsettled debates about the appropriate line between liberty and license, and American history contains any number of competing strands of argument on this question. Barnett adopts a view drawn from classical liberalism and contemporary libertarian theory. We are personally sympathetic to that approach, and we are willing to assume that a Supreme Court staffed with nine Randy Barnetts might well produce an intellectually coherent and in many ways salutary set of social policies. But we cannot claim that our policy views are self-evidently embodied in the Constitution, while others, such as President Franklin Roosevelt’s notion of the four freedoms, are self-evidently unconstitutional.127 Indeed, even the classical liberal tradition encompasses sharp debates about what constitutes a harm to third parties that is sufficient to justify curtailing liberty.
    I will stop here. McGinnis and Lund's claims are certainly interesting and provocative! Highly recommended!

Tuesday, April 27, 2004
Gardner on Kutz John Gardner has a review of Christopher Kutz's book Complicity forthcoming in Ethics. You can download it here. And here is a taste:
    An accomplice is someone who commits a wrong that consists in his contributing to someone else’s committing a wrong. Morally as well as legally, accomplices fall into two classes. Some accomplices are co-principals. Suppose that two burglars set about ransacking a house together. As well as being a burglar in his own right, each is an accomplice in the burglary committed by the other, just by virtue of the fact that the two of them are acting together in a joint enterprise. Other accomplices are accessories. Suppose that one burglar ransacks a house, but only after a corrupt postal worker passes him the information that the owners are on vacation. The postal worker is an accomplice in burglary (and in some legal systems can be convicted of burglary) whether or not there was a joint enterprise.
    Although his book is titled Complicity, Christopher Kutz does not compare and contrast these two modes of complicity. Nor does he explore either of them comprehensively. He focuses on one special case of complicity. It is the case in which people commit a wrong together that none of them commits in his or her own right. In such wrongdoing the only principal is a collectivity: a nation, a corporation, a team, a group. And the individuals who make up that collectivity are at most accessories to the collectivity’s wrong. Most of Kutz’s book is about the moral position of the individuals who make up the collectivity. Are they indeed complicit, and if so what follows?

Conference Announcement: The Ethics of Global Warming
    THE CENTRE FOR APPLIED ETHICS Cardiff University HAS PLEASURE IN ANNOUNCING AN INTERDISCIPLINARY DAY-CONFERENCE ON THE ETHICS OF GLOBAL WARMING to be held on Friday 23rd July 2004, 11.00 am to 4.30 pm in the Humanities Building, Cardiff University. Sir John Houghton CBE, FRS Former chair, Royal Commission on Environmental Pollution and former co-chair (UK), Intergovernmental Panel on Climate Change 'The Science of Global Warming' Michael Grubb Associated Director (Policy), the Carbon Trust; Visiting Professor, Imperial College London; Senior Research Associate, Department of Applied Economics, Cambridge University 'Costing Impacts: On Omission and Commission' Donald Brown Director, Pennsylvania Consortium for Interdisciplinary Environmental Policy; Former Program Manager for UN organisations at US Environmental Protection Agency Office of International Environmental Policy, and Author of American Heat: ethical problems with the United States' response to global warming 'The International Ethics of Atmospheric Pollution' Robin Attfield Centre for Applied Ethics, Cardiff University; Author of The Ethics of the Global Environment and Environmental Ethics: An Overview for the Twenty-First Century 'Future Generations: Considering All the Affected Parties' For further information, contact Debbie Evans ( or Ed Dain (, or visit the conference website: Registration fee (including refreshments, lunch and conference pack) ?20 (students ?10). Please circulate this email to anyone who might be interested.

Tuesday Calendar
    At Oxford's Jurisprudence Discussion Group, Danny Priel presents Farewell to the Exclusive-Inclusve Debate. See you there!
    At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow.
    At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game.

Monday, April 26, 2004
A Legal Scholar’s Journal, Part Two: Origins
    Introduction This is the second installment of A Legal Scholar’s Journal, an irregular feature of Legal Theory Blog. The idea of the journal is to share my progress on an article, from the blank page (or “screen”) that I had last week through the early drafts of summer to the submission of the final draft to law reviews in February of 2005. The article is about the relationship of This post is about the genesis of the article—its origins in the early days of my own legal and philosophical education. Today is an especially appropriate day to talk about the origins of my current project, because I am . . .
    On the Train to Oxford . . . I am composing this post on the train to Oxford. It just so happens that I had planned to be in the United Kingdom this week, for the conference on virtue ethics at the University of Dundee in Scotland. One of the disadvantages of doing the weekly Legal Theory Calendar is that I know about all the conferences and talks that I’m going to miss—leading to a very high regret quotient. But in this case, I felt quite fortunate, because I was able to plan to arrive in time to hear Philippa Foot, the distinguished moral philosopher, give a lecture entitled Happiness and Morality today. Thinking about Professor Foot (who I thought of as “Mrs. Foot,” no matter how un-PC that might be) takes me back more than twenty years . . .
    Dodd Hall . . . more than twenty years to the Philosophy Department at the University of California at Los Angeles. I still have very distinct memories of Foot’s course in metaethics. Along with Rogers Albritton, Tyler Burge, Thomas Hill, Greg Kavka, and Jean Hampton, Foot had a tremendous formative influence on my intellectual development. At the time, I recall being very attracted to Kantian moral philosophy, but Foot’s outlook on ethical theory must have struck a very deep chord. I still have a very vivid memory of the day that Foot introduced Elizabeth Anscombe’s essay Modern Moral Philosophy, an article that has had a profound influence on the direction of moral philosophy in the past fifty years.
    Anscombe’s article contained an important critique of Kantian and utilitarian approaches to moral philosophy. Of course, the objections that Anscombe made in 1958 are no longer state of the art. Both Kantians and utilitarians have developed clever, even brilliant replies, to her particular objections, but the sophisticated work of Derek Parfit, Samuel Scheffler, Onora O’Neill, Barbara Hermann, and Christine Korsgaard was still far in the future in late 50s and early 60s. Anscombe’s essay ended with the suggestion that moral philosophers look to Aristotle’s moral philosophy as an alternative to what looked like dead ends in the development of consequentialist and deontological moral theory.
    Virtue Ethics And sure enough, Anscombe’s suggestion was taken up, by Peter Geach (her husband), by Philippa Foot, and others. This early work lead to one of the most significant developments in contemporary moral philosophy—the emergence of what has come to be known as “virtue ethics.” (And virtue ethics has gone off in a very different direction than that take by Foot's work.) In the early 1980s, when I studied with Foot, it hadn’t yet become clear that virtue ethics was about to become a phenomenon, with dozens of books, hundreds and hundreds of articles, and conference after conference to follow. So while I was interested in virtue ethics and familiar with the key foundational articles, I found myself attracted to other ideas as I prepared to go to law school. I’d done a graduate seminar in Rawls’s political philosophy with Jean Hampton at UCLA, and while at Harvard Law School, I took advantage of the opportunity to take Rawls’s own course on his work. (To this day, Rawls remains a huge influence on my work.) If you’d asked me what my philosophical orientation was in 1984, the year I graduated from law school, I think I would have replied, “Rawlsian.”
    A Twist of Fate I might never have returned to virtue ethics, but for a twist of fate or two. One was the fact that my professional responsibility course at Harvard included a paper requirement, and it seemed quite natural for me to write a short paper on the implications of virtue ethics for legal ethics. But it was the second event that revived and intensified my interest in virtue ethics. I was invited to a conference on judicial selection at the University of Southern California in the late 1980s. My role was to comment on a paper by Fred Schauer (now at Harvard’s Kennedy School of Government but then at the University of Michigan).
    Schauer had written a very provocative essay, arguing that nonlawyers were qualified to become Justices of the United States Supreme Court—because the issues the Supreme Court decides are more political than legal in nature. I knew that I disagreed with that thesis. My first article [On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987)] was a critique of the indeterminacy thesis—the idea that law was politics. It seemed to me that judges ought to be selected for their possession of a set of moral and intellectual virtues—the ability to think through complex legal problems, common sense and good practical judgment, a dedication to the rule of law, as well as the general moral virtues—temperance, a good temper, courage, and so forth.
    The Birth of Virtue Jurisprudence And this quite naturally led me back to Philippa Foot and virtue ethics. My reply to Schauer [The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 Southern California Law Review 1730 (1988)] was the beginning of a project that continues today. I began to think systematically about the possibility of developing a theory of law that drew upon the framework of virtue ethics and worked out the consequences for normative jurisprudence.
    Phronesis and Equity But this wasn’t easy. There are now several different strands within virtue ethics. For example, there is a Humean strand associated with Michael Slote. But the dominant approach to virtue ethics among contemporary moral philosophers is Aristotelian (or neo-Aristotelian). This was the strand of virtue ethics to which I was drawn. One of the really nifty things about Aristotle’s ethics is his account of phronesis, the virtue of practical wisdom. This tied in nicely to my intuition that judges needed common sense and good practical judgment. I began to realize that Aristotle’s ideas about practical wisdom had strong echoes in the work of some of the legal realists. When I read Nancy Sherman’s book, The Fabric of Character, I could see an obvious connection between her notion of moral vision and Karl Llewellyn’s idea that good judging required situation sense. And all of this tied into Aristotle’s explication of equity in Book V Chapter 10 of the Nicomachean Ethics. This work resulted in a paper I gave at the annual meeting of the American Society for Political and Legal Philosophy [Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)].
    The Problem of Justice Developing an account of phronesis and equity was really just a warm up exercise. I began to realize that virtue jurisprudence required a solution to a problem that many virtue ethicists have avoided. One could hardly claim to have developed a theory of judicial virtue without some account of the virtue of justice. But at this stage in the game, I realized that offering such an account was not going to be easy. I had read Bernard Williams’s famous article, which seemed to offer a devastating critique of Aristotle’s account of justice as a virtue. Moreover, I began to notice that philosophers tended to avoid Book V of the Nicomachean Ethics. I sat in on Gavin Lawrence’s course on Aristotle’s ethics at UCLA, and sure enough, he announced that we would not cover Book V. I sat in on Chris Korsgaard’s graduate seminar on Aristotle’s ethics at Harvard, and (no surprise to me by then), she did not cover Book V.
    Here’s the problem in a nutshell. Aristotle understands the moral virtues as a certain kind of disposition with respect to a morally neutral emotion. So courage is a disposition with respect to the morally neutral emotion of fear, and good temper is a disposition with respect to the morally neutral emotion of anger. Someone who is disposed to disproportionate fear has the vice of cowardice; someone who is disposed to react to danger without sufficient fear has the vice of rashness. Courage is a kind of mean between these two opposing vices.
    But justice doesn’t seem to fit this pattern. What is the morally neutral emotion? And what are the two opposing vices? Bernard Williams made a convincing case that what we call the virtue of justice doesn’t have a distinctive relationship with any emotion at all. Rather, justice seems to be the disposition to do what is just. And what is just, according to Williams, has to be given to us by some theory (e.g. a theory of distributive or corrective justice).
    Stuck I was stuck on this problem for quite some time—years, not hours, days, or weeks. I could see various possible solutions, but none of them seemed satisfactory. And I knew that this was not a new problem. Working out Aristotle’s views on justice was a notoriously difficult problem for Aristotle scholars and for contemporary neo-Aristotelian virtue theorists. In the next installment of A Legal Scholar’s Journal, I’ll say a bit more about the origins of the project and how I came to see a solution to the problem of justice.
    I’ve posted a guide to the installments in this series on the Legal Theory Annex. The next installment should be up in a few days. See you then!

Monday Calendar
    At Oxford today, Philippa Foot is speaking. This should be good! I will be at the talk!
    At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation.
    At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking.
    At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness'
    Correction, Jack Balkin's talk at Cardozo is tomorrow!

Sunday, April 25, 2004
Legal Theory Calendar
    Monday, April 26, 2004
      At Oxford today, Philippa Foot is speaking. This should be good! I will be at the talk!
      At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation.
      At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking.
      At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness'
    Tuesday, April 27
      At Oxford's Jurisprudence Discussion Group, Danny Priel presents Farewell to the Exclusive-Inclusve Debate. See you there!
      At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow.
      At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game.
    Thursday, April 29 Friday, April 30
      At the University of Dundee (today through Sunday), Values and Virtues: Aristotelianism in Contemporary Ethics. See you there! At SUNY Buffalo, Jack Schlegel, UB presents Notes Toward a General Theory of Civil Liability and the Escape from the Plaintiff's Lawyer's Nose
      At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective. At the University of Texas, the first day of a Conference on Constitutional Concepts.
      At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning.
More to come, but probably not until Monday.

Legal Theory Lexicon: Holism
    Introduction Most law students are in exams at this time of year, so I will keep this entry in the Legal Theory Lexicon series relatively brief. Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.
    As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. And by the way, good luck on your exams!
    The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.
    Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.
    Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”
    Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.
    Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.
    Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.
    At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).
    Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.
    Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.
    Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.
    Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.
    Once, again, good luck on your finals!