The University of Chicago Law School Faculty Blog

Audio: Brian Leiter on Free Speech and the Internet

On Tuesday, John P. Wilson Professor of Law Brian Leiter was a guest on WNPR's show, "Where We Live." Together with Danielle Citron and Senator Gary LeBeau, he discussed the extent to which First Amendment protections should be extended into cyberspace.

On their website, WNPR sums up the conversation:

Our discussion this morning kept circling back to some central questions--questions we've been dealing with and will continue to deal with on Where We Live: How is the internet changing our social contract?  What rights are we willing to give up in order to maintain order in the digital world?  And as the internet continues to fundamentally change the course of global communications and transactions--what new rules should govern online life and what, if any, new rights must we protect?

You can listen to the show here.

Brian Leiter and Scott Shapiro: "Even Further Beyond the Hart-Dworkin Debate"

This past weekend, John P. Wilson Professor of Law Brian Leiter took part in a Bloggingheads.tv "diavlog" with Yale's Scott Shapiro entitled "Even Further Beyond the Hart-Dworkin Debate." The entire conversation is embedded below, or you can jump to individual topics here: 

• A short primer on legal philosophy (06:06)
• Hart’s legal positivism vs. Dworkin’s (quasi-)natural law theory (13:45)
• Explaining theoretical disagreement: a challenge for positivism (16:56)
• Is theoretical disagreement so rare it needs no explanation? (09:10)
• Can a novel way of interpreting law be offered in good faith? (11:34)
• Brian and Scott explain why they are positivists (05:28)        

Student Blogger - Brian Leiter: “Why Tolerate Religion?”

Monday marked this year’s first meeting of the Law and Philosophy Workshop. It is traditional for one of the workshop’s early meetings to be limited to students in order to familiarize them with some of the key concepts and common problems that characterize that year’s topic. This year’s topic being “Toleration and Religious Liberty,” it was fitting for Brian Leiter to present his paper, “Why Tolerate Religion?” (available here) at this first student-only meeting.

“Why Tolerate Religion?” is an attempt to find a principled argument for religious toleration that does not apply equally to toleration of conscience generally. Leiter notes that religion has been given a special place in our constitutional system, and asks if this is justified. At the workshop’s opening, he acknowledged that in his paper he was taking for granted that if there is a principled foundation for the law of religious liberty, it is to be associated with the idea of toleration, as opposed to some other concept such as equal respect.

Nussbaum on Political Philosophy

Chicago's own Martha Nussbaum is one of the contributors to this illuminating new set of interviews with leading political philosophers, who discuss the major issues in the field, their contributions to it, as well as the issues that will be most important for the future.  The book's web site includes many interesting excerpts from the interviews, including Professor Nussbaum's own observations about neglected topics in political philosophy.  One such topic, she says, is religion:

Good writing in political philosophy about religion is relatively rare. Again, there is a strong tradition here in Western thought, including Roger Williams, Thomas Hobbes, John Locke, Spinoza, David Hume, Immanuel Kant, Moses Mendelssohn (whose writings ought to be much better known than they are), and John Rawls.  But we need to start working on this topic with an eye to the problems that vex our world today, problems of religious fear and loathing spawned by the fear of global terrorism.  To do this work well, we need to learn much more about non-Judeo-Christian religions, and, most obviously, about Islam. We ought to be teaching every undergraduate philosophy major courses on Islamic philosophy, but to do that we first have to educate ourselves! I would like to see a vigorous conversation about religion and political philosophy across national, cultural, and religious lines. 

A similar volume on the problems of legal philosophy, which might be of interest to law students and legal scholars, will be available later this year; look for excerpts from those interviews at the book's site later this Spring.  Finally, students of law and economics may find the excerpts from interviews with leading game theorists of interest.

What Do and What Should Judges Do?

Last Thursday (Nov. 16) the Federalist Society and American Constitution Society at the Law School sponsored a "debate" between myself and Judge Richard Posner about what Judge Posner has called "pragmatic adjudication."  (Thanks should also go to Chicago 2L William Rothwell for his work setting this event up.)  The podcast of that event is now on-line here.  Since it is long (about 1 1/2 hours), I thought I would try to say a little bit about both our subject and some of the "highlights." 

The session was less a "debate" than a discussion, in which I invited Judge Posner to clarify his conception of "pragmatic adjudication."  I took as the focal point of our discussion pp. 241-242 of his book The Problematics of Moral and Legal Theory (Harvard University Press, 1999), where he defends the view that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (241).  Based on these materials, I put to Judge Posner four questions about his conception of pragmatic adjudication.