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Unpublished Paper
A Swindle with Big Words and Virtues?: Leiter on Dworkin and "Nonsense Jurisprudence"
(2012)
  • Timothy J. Stostad, None
Abstract

In a recent essay, Professor Brian Leiter argues that the jurisprudence of Professor Ronald Dworkin, which Leiter calls “Moralist” jurisprudence, is neither “relevant [nor] illuminating when it comes to law and adjudication.” Exponents of such jurisprudence, Leiter argues, credulously attend to the articulated doctrinal rationales offered by judges as grounds for their decisions. “Realists,” by contrast, recognize that certain nonlegal factors better predict patterns of judicial decision making than do doctrinal rationales. According to Leiter, it follows from the fact that nonlegal factors predict and presumably influence judicial decisions, that attention to judges’ stated rationales is largely a mistake. Here, I argue that Leiter fails to show that a Dworkinian account of adjudication lacks relevance and illumination as alleged. The evidence that nonlegal factors drive judicial decisions leaves open important questions about whether doctrinal rationales are doing very real work in shaping and constraining—rather than merely concealing the cynical motives for—official exercises of judicial power. I will argue, first, that Leiter’s radical Realism would render the judiciary conceptually incoherent or else lead to bad decisions; second, that even if Leiter only advocates modest reform, he fails to explain why courts embracing his preferred doctrinal commitments would render better judgments or be immune from the corrupting influences he describes; third, that doctrines of the kind Leiter dismisses in fact impose considerable practical constraints upon judges; and fourth, that even if descriptively incomplete, Dworkinian jurisprudence can still be defended as making useful normative claims concerning how judges should approach their roles.

Keywords
  • Dworkin,
  • Leiter,
  • Indeterminacy
Disciplines
Publication Date
2012
Citation Information
Timothy J. Stostad. "A Swindle with Big Words and Virtues?: Leiter on Dworkin and "Nonsense Jurisprudence"" (2012)
Available at: http://works.bepress.com/timothy_stostad/2/