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Abstract:
Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all.

This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.

legal realism, H.L.A. Hart, Brian Leiter, rule skepticism, legal rules, prediction theory of law

Abstract:
Hans Kelsen's formalism and Kantianism have been barriers to an appreciation of his work in the United States. This article offers a sympathetic reading of Kelsen's approach in legal theory by drawing analogies between it and the writings of Gottlob Frege. For Frege, the subject matter of logic is the necessary relations between linguistic meanings. These relations can be seen as necessary only on the assumption that linguistic meanings are abstract objects that cannot be reduced to anything empirical. For this reason Frege rejected psychologism in logic. Like many other late-nineteenth century anti-psychologists, Frege offered a Neo-Kantian account of how non-empirical knowledge of meanings is possible.

Analogously, Kelsen argued that legal meanings are abstract objects. Kelsen proposed an analysis of the necessary relations between legal meanings - a logic of legal systems - that is similar to the Fregean logician's account of language. And like the logical anti-psychologists, Kelsen offered a Neo-Kantian account of how knowledge of legal meanings is possible.

Although I do not undertake to defend the details of Kelsen's approach, I hope to make his third way between empiricist and natural law theories approaches in jurisprudence more understandable and attractive to American audiences.

Hans Kelsen, Kant, Frege, Neo-Kantianism, logic, legal systems, jurisprudence, philosophy of law

Abstract:
Although philosophers of law display an impressive diversity of opinion, they usually agree about one thing: Their discipline is closely connected to the philosophy of language. The extent of agreement on this point can be seen in the recent flood of books and articles exploring the connections between the two fields.

In this Essay, I will argue that much of this literature is based upon a mistake. The philosophy of language generally has no jurisprudential consequences. The fact that so many philosophers of law have thought otherwise has seriously hampered progress in the field, and not just because time, effort, and paper have been wasted. Theories about the law have been accepted or rejected for the wrong reasons - on the basis of arguments about language that fail to support or undermine these theories at all.

The philosophy of language appears to have jurisprudential consequences because of a mistake, which I will call "Dworkin's fallacy" in honor of the most famous philosopher of law to have succumbed to it. This Essay will analyze the fallacy and describe its negative effects. In Part I, I will describe an example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate concerns realism about reference. Can words refer in ways that transcend our current beliefs? For example, can the word "law" refer to something that people do not currently believe is law? In Part II, I will provide two examples of philosophers of law - Ronald Dworkin and Michael Moore who misderive jurisprudential conclusions from this debate.

In Part III, I will describe a second example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate, which is inspired by Ludwig Wittgenstein's remarkable discussion of rule-following, concerns the fundamental question: How is it that we can intend to use a word in one way rather than another? How can we make "law" mean law instead of, say, Nilla Wafers? In Part IV, I will provide two examples of philosophers of law - Dennis Patterson and Margaret Radin - who misderive jurisprudential conclusions from this second debate.

Although Dworkin, Moore, Patterson, and Radin agree about little in the philosophies of language and law, Dworkin's fallacy causes each to see a relationship between the two disciplines. Given the pervasiveness of the fallacy, we should be skeptical whenever a philosopher of law relies on the philosophy of language. Chances are, she is discussing issues that are irrelevant to her true concerns. I will end the Essay with a brief discussion of three situations to which Dworkin's fallacy does not apply and in which the philosophy of language has genuine, if limited, relevance for the philosophy of law.

Abstract:
Although philosophers of law display an impressive diversity of opinion, they usually agree about one thing: Their discipline is closely connected to the philosophy of language. The extent of agreement on this point can be seen in the recent flood of books and articles exploring the connections between the two fields.

In this Essay, I will argue that much of this literature is based upon a mistake. The philosophy of language generally has no jurisprudential consequences. The fact that so many philosophers of law have thought otherwise has seriously hampered progress in the field, and not just because time, effort, and paper have been wasted. Theories about the law have been accepted or rejected for the wrong reasons - on the basis of arguments about language that fail to support or undermine these theories at all.

The philosophy of language appears to have jurisprudential consequences because of a mistake, which I will call Dworkin's fallacy in honor of the most famous philosopher of law to have succumbed to it. This Essay will analyze the fallacy and describe its negative effects. In Part I, I will describe an example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate concerns realism about reference. Can words refer in ways that transcend our current beliefs? For example, can the word law refer to something that people do not currently believe is law? In Part II, I will provide two examples of philosophers of law - Ronald Dworkin and Michael Moore - who misderive jurisprudential conclusions from this debate.

In Part III, I will describe a second example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate, which is inspired by Ludwig Wittgenstein's remarkable discussion of rule-following, concerns the fundamental question: How is it that we can intend to use a word in one way rather than another? How can we make law mean law instead of, say, Nilla Wafers? In Part IV, I will provide two examples of philosophers of law - Dennis Patterson and Margaret Radin - who misderive jurisprudential conclusions from this second debate.

Although Dworkin, Moore, Patterson, and Radin agree about little in the philosophies of language and law, Dworkin's fallacy causes each to see a relationship between the two disciplines. Given the pervasiveness of the fallacy, we should be skeptical whenever a philosopher of law relies on the philosophy of language. Chances are, she is discussing issues that are irrelevant to her true concerns. I will end the Essay with a brief discussion of three situations to which Dworkin's fallacy does not apply and in which the philosophy of language has genuine, if limited, relevance for the philosophy of law.

Ronald Dworkin, Philosophy of Law, Philosophy of Language, Semantics, Wittgenstein, Realism, Jurisprudence

Abstract:
In "Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law," I described a common fallacy among philosophers of law, in which jurisprudential conclusions are misderived from semantic premises, and argued that the fallacy can be found in Ronald Dworkin's classic book, "Law's Empire." Dworkin responds to my essay in his most recent book, "Justice in Robes," where he claims that, rather than committing Dworkin's fallacy in "Law's Empire," he "took pains to warn against it."

This paper is a reply to Dworkin. I argue that his response to my essay, far from showing that he did not commit Dworkin's fallacy, is itself an example of the fallacy. But this paper is also a critique of Dworkin's larger argument in "Justice in Robes," for I claim that Dworkin's fallacy pervades his most recent book just as much as it did in "Law's Empire." Dworkin repeatedly treats theories of law - both his own and his adversaries' - as if they were, or were entailed by, semantic positions. Because he succumbs to Dworkin's fallacy, his descriptions of his own views on semantic issues are unreliable, and I spend much of the paper teasing out what I believe is Dworkin's latent semantic theory.

Dworkin, Jurisprudence, Semantics, Philosophy of Law, Interpretation

Abstract:
A revolution (in the legal sense of the term) occurs when chains of legal dependence rupture - causing one legal system to be replaced by a different and incommensurable legal system. For example, before the French Revolution chains of legal dependence ultimately led to Louis XVI, but after this revolution they led to the National Assembly (or the people of France it represented).

The very possibility of revolutions depends upon laws being structured into legal systems in this fashion. And yet, despite substantial academic interest in revolutions, there has been a reluctance to examine the structure that makes them possible. The goal of this Article is to begin to fill this gap by examining six mistakes in reasoning about revolutions that occur when the structure of legal systems is ignored. My discussion focuses on concrete examples of these mistakes, drawn from a wide variety of sources, including the writings of Akhil Amar, the Supreme Court of Pakistan's 1958 decision in State v. Dosso, the jurisprudence of John Austin, and recent criticisms of Bush v. Gore.

Revolution, Hans Kelsen, H.L.A. Hart, John Austin, Akhil Amar, Bush v. Gore, Sovereignty, Logic, Constitutional Amendment, Legal Realism

Abstract:
In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court held that the Second Amendment protects an individual right to bear arms. And it struck down two gun control laws on the ground that they violated this individual right. But Justice Scalia's opinion fails to identify the interest in private arms possession that the Second Amendment protects. It is not enough to assert, as Scalia does, that the right to bear arms is tied to the right of self-defense. For that fails to identify the interest that the right of self-defense itself protects, as well as the connection between arms possession and this interest in self-defense.

Clarity about the Second Amendment's purpose is essential to any principled reasoning about its scope. In this article, I identify nine possible interests (including, but not limited to, interests in self-defense) that the Second Amendment might protect, as a foundation for intellectually responsible reasoning about this constitutional right.

Second Amendment, John Locke, social contract, state of nature

Abstract:
In this review essay, I argue that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in "Justice in Robes," his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.

Ronald Dworkin, semantics, philosophy of law, jurisprudence, semantic sting

Abstract:
This article is a limited defense of copyrights for the contents of factual compilations. The form of protection that I propose, under which the collective factual content of such compilations is protected, differs from an approach that protects individual facts and from the currently accepted approach (as articulated in Feist v. Rural Telephone), under which only selections and arrangements of individual facts are protected.

Although I accept that there are sound economic justifications for refusing to copyright individual facts, my justifications differ from those that have traditionally been offered. The traditional justifications are: 1) that the monopolization costs of protecting individual facts are too great, because facts are too valuable as components for future works to have access to them limited by property rights, and 2) that facts fail the independent creation requirement for copyright protection, because they are not authored by anyone. Both of these justifications fail. Monopolization costs can at most justify limited terms for copyrights in facts. And, far from failing the independent creation requirement, facts (properly understood as representations of reality rather than reality itself) are as much works of authorship as novels are. I argue that transaction and enforcement costs are the real reasons that individual facts are not copyrightable.

Furthermore, some components of factual works - specifically, ground breaking and explanatorily powerful theories like Einstein's theory of relativity - should be copyrightable if our sole concerns were transaction, enforcement and monopolization costs. Instead such theories are not protectable because any work that borrows them is their complement (in the sense that its production makes them more desirable), provided that the work acknowledges the theories' true provenance. This is because it is only through dissemination in other works that such theories can undergo the test of truth.

But nothing about the uncopyrightability of the components of factual works stands in the way of copyrights for the collective factual content conveyed by such works. It might appear that protecting collective content is no different from the Feist approach, in which selections and arrangements of facts alone are protected. After all, collective factual content is created by selecting and arranging individual facts. If individual facts are not protected, then the selections and arrangements, it seems, must be.

But this is a fallacy. Protecting a fictional story is not the same as protecting the methods of selection and arrangement used to generate the story from unprotected elements of character, plot, and setting. Likewise, protecting the collective factual content of a database is not the same as the Feist method. The collective content of databases, I argue, should be protected in the same manner that fictional stories are. Such an approach, far diverging from traditional copyright principles, follows from them.

copyright, facts, intellectual property, databases, compilations

Abstract:
Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls the "rule of recognition" for the system.

Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face.

Abstract:
In my recent essay, Dworkin's Fallacy, or What the Philosophy of Language Can't Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), I argued that a particular confusion between linguistic and legal practices - evident most notably in the work of Ronald Dworkin - causes legal theorists to misderive jurisprudential conclusions from semantic premises. Because much, if not most, jurisprudential interest in the philosophy of language is motivated by Dworkin's fallacy, I argued that the philosophy of language does not generally have jurisprudential consequences. But in the conclusion to my essay I identified three areas where Dworkin's fallacy does not apply and the philosophy of language has genuine, albeit very limited, consequences for the philosophy of law.

In his response to this essay (Andrew Halpin, Or, Even, What the Law Can Teach The Philosophy of Language: A Response to Green's Dworkin's Fallacy, 91 Va. L. Rev. 175 (2005)), Halpin argues that I neglected a number of important connections between the two disciplines. But the connections Halpin describes are in fact those that I identified as genuine in the conclusion to my essay. What is more, Halpin appears to agree with me that these connections, although genuine, are very limited, in the sense that they yield few substantive jurisprudential consequences. Halpin sees a disagreement between us on these matters only because he misunderstands the confusion of linguistic and legal practices at issue in Dworkin's fallacy.

But Halpin does argue for a connection between the philosophies of language and law that is different from those I entertained in my essay. I was interested in whether the philosophy of language can yield conclusions in the philosophy of law. Halpin appears to agree with me that it cannot. But Halpin argues that the philosophy of law can yield conclusions in the philosophy of language. Although Halpin's argument here is suggestive, it is insufficiently detailed to allow me to come to a firm conclusion about its merits.

In my essay I offered Dennis Patterson's legal theory, with Dworkin's, as examples of Dworkin's fallacy in action. Halpin argues that Patterson's theory does not suffer from Dworkin's fallacy. I end my response to Halpin with a defense of my critique of Patterson, by expanding what was admittedly a compressed argument in the original.

Dworkin, Semantics, Jurisprudence, Dennis Patterson, Andrew Halpin

Abstract:
According to Locke's theory of the social contract, which was widely accepted by the Founders, political authority is limited by those natural moral rights that individuals reserve against the government. In this Article, I argue that Locke's theory generates paradoxical conclusions concerning the government's authority over civil disobedients, that is, people who resist the government because they believe it is violating reserved moral rights. If the government lacks the authority to compel the civil disobedient to abide by its laws, the result is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has this authority, the result is authoritarianism: The limits on governmental authority are whatever the government says they are. Both conclusions are unacceptable.

Because of the Lockean paradox, auxiliary constitutional rights, whose purpose is to protect civil disobedience, are likewise paradoxical. I argue that the Fifth Amendment privilege against self-incrimination and the Second Amendment right to keep and bear arms are examples of auxiliary rights, and I use the Lockean paradox to explain the intractable nature of the debates over whether these two rights provide anything of moral value. To their critics, these rights are anarchistic. All they do is give individuals the power to frustrate the government's legitimate attempts to protect citizens against mutually-imposed risks of violence. To their supporters, these rights are a bulwark against authoritarianism. To deny citizens the power to resist the government is to accept that the only views about the limits of political authority that matter are the government's. These disagreements cannot be resolved, because both sides are right. Supporters of these rights are anarchistic and their critics are authoritarian. As long as we continue to accept the Founders' Lockean view that governmental authority is limited by reserved moral rights, we will never be able to reject or accept these two constitutional rights.

The Lockean paradox also explains the difficulties that courts and academics have experienced delineating the scope of these rights in a conceptually satisfying manner. Here too I argue that these problems cannot be overcome. The limits that are placed on these rights will always be arbitrary and ad hoc.

John Locke, social contract theory, Second Amendment, privilege against self-incrimination

Abstract:
In this essay, I identify two fallacies concerning the copyrightability of factual compilations. The first is that facts cannot be copyrighted because they are not independently created. I argue that once facts are properly understood as content, rather than reality, the independent creation requirement does not stand in the way of their copyrightability.

The second is the fallacy of division. This occurs when one wrongly takes what is true of a whole to be true of some or all of its constituents. An example is the assumption that if we are conscious, some or all of our cells must be conscious as well. The fallacy of division expresses itself in copyright law in the assumption that if a factual compilation is copyrightable, there must be some constituents of the compilation that are copyrightable as well. Since the individual facts out of which the compilation is composed cannot be these copyrightable constituents, courts assume that they are instead the compilation's selection and arrangement of facts.

I argue that such an approach to factual compilations is incoherent. Under the pressure of analysis, selections and arrangements themselves dissolve into uncopyrightable components - the submethods out of which selections and arrangements as a whole are composed. One can consider selections and arrangements to be copyrightable only if one sets aside the fallacy of division and looks at selections and arrangements in the aggregate to determine their copyrightability, without attempting to find some component of them that is copyrightable. But once one has set aside the fallacy of division with respect to a compilation's selection and arrangement, there is no reason not to do the same with respect to its factual content.

I call an approach that determines the copyrightability of a compilation by looking to the collective factual content communicated by the compilation, rather than the compilation's selection and arrangement, the collective fact approach. The collective fact approach is in keeping with the way that fictional works are treated under copyright law. Although the individual elements out of which a novel's plot, scenes, and characters are composed are unprotected, no one would say that the copyrightable part of a novel is its selection and arrangement of these elements. One determines copyrightability by looking to the collective content of the novel itself - its plot, scenes, and characters. A factual compilation, I argue, should be assessed on the basis of whether its collective factual content is copyrightable.