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October 6, 2008


Longtime readers of Larry Solum's useful Legal Theory Blog will know that Larry is generous to a fault in his appraisals and recommendations of articles and books, usually finding something positive to say even about work that isn't very good.  Against that background, I couldn't help but notice when a recent piece on originalism (one of Larry's scholarly interests) netted a devastasting "Hmm?"

Sometimes understatement pays!

Meanwhile, my apologies for neglecting this blog over the last two months.  The move and all my new obligations have taken their toll on blogging time.  I hope to do a bit better in the next couple of months, now that we're settling into our new routines.

Let me invite readers to post in the comments any especially interesting pieces they've read lately.  Details about the article or book would be esp. welcome, and signed comments strongly preferred, as usual.

Posted by Brian Leiter on October 6, 2008 in Legal Theory | Permalink


I agree that understatement pays, but I'm not sure how appropriate it is here. Up or down reviews are par for the course in this business, but "Hmm?" could be read--as Brian reads it and as I (the author) am inclined to read it--as suggesting that a piece is so poor or inscrutable that it merits neither silence nor the energy of a negative review. Although reasonable people may differ on the merits of the piece, as with any other, I am quite confident that it doesn't fall into the unfortunate category Larry's comment implies. That said, though I am not generally a subscriber to the maxim that there is no such thing as bad press, I'm happy that Larry has called attention to the article and I invite readers to draw their own conclusions.

Posted by: Jamal Greene | Oct 6, 2008 9:02:56 PM

I really liked a piece by Paul Litton, "Responsibility Status of the Psychopath: On Moral Reasoning and Rational Self-Governance". It's supposed to be in the Rutgers (Camden) Law Review soon, if it's not out already. I thought it was a really terrific blend of moral psychology, moral philosophy, and empirical psychology applied to a legal question. (Paul is a friend and former colleague but I think my opinion here is not being unfairly biased.)

Posted by: Matt Lister | Oct 7, 2008 12:35:38 PM

Well, it's been a day and no one has pointed out any articles by others, so I thought I'd ask for any reactions to this piece of mine coming out in Notre Dame, which I still have some time to revise: http://ssrn.com/abstract=1227162

I argue that the Supremacy Clause and other constitutional indexical language embeds a theory of the Constitution's nature, and so a form of (what I call) textualist semi-originalism, binding on anyone who takes the Article VI oath.

Posted by: Chris Green | Oct 7, 2008 1:35:40 PM

From a rabidly textualist point of view, I'm not sure Prof. Solum's response qualifies as ironic understatement so much as genuine equivocation, perhaps colored with vague disapproval. It's "Hmmm" with a question mark, not an ellipsis. "Hmmm..." would more clearly indicate Prof. Solum's sure wariness of the piece. As a question, the remark could indeed be a swipe (akin to "Say, wha'?!" or "Huh?"), but it could also be a way of suggesting he's undecided or interested in other readers' opinions. My guess, after skimming the 87 pages, is that he wonders whether it is really about originalism at all. Prof. Greene's thesis seems to be less a discussion of theories of originalism than a model for marketing any constitutional methodology for popular and professional consumption, originalism serving as the instant case study. And I bet Prof. Solum finds mildly off-putting the occasional references to Stanley Fish, CLS, and the "aesthetic appeal" of constitutional arguments.

My recent reading of interest: Stephen Waddams's Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning, which just happens to share with Prof. Greene's piece an eagerness to dispel any expectations for purely methodical, clean-cut approaches to understanding how law works. Waddams wants to challenge the drive--best represented by the work of Peter Birks--to rigorously order or "map" law, and also to correct the notion that a failure to so order the law absolutely spoils its coherence.

Posted by: Dean C. Rowan | Oct 7, 2008 1:48:41 PM

What does Brian Leiter think of John Finnis's work in jurisprudence and ethics?

Brian recently wrote that "Robbie George is not a very good legal philosopher, and his writing is too obviously in the service of religious dogma". Now, there is hardly anyone (besides, I recognize, George) writing in the field of jurisprudence whose writing is more aligned with an official body of religious dogma than Finnis. As most New Natural Law theorists Finnis rarely appeals to religious authority or revealed truth and argues from the perspective of reason alone but there is no doubt that his 'Natural Law' coincides, point by point, with the core of Catholic Moral Theology.

I am curious then: Does Brian believe that Finnis is "not a very good philosopher" and/or a philosopher whose work is "at the service of religious dogma"?

Also, it is interesting to ask if the kind of argument provided by Finnis against same-sex marriage or for the criminalization of abortion is consistent with Rawls’ requirements of “public reason” in Political Liberalism. It seems to me that it is. (This, of course, has nothing to do with Brian’s opinion about Finnis’ work).

Posted by: Jurisprudence student | Oct 16, 2008 9:55:30 AM

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